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Crimes against Humanity in Western Burma:

The Situation of the Rohingyas

Irish Centre for Human Rights


2010
Crimes against Humanity in Western Burma:
The Situation of the Rohingyas

Irish Centre for Human Rights


2010
Table of Contents

CHAPTER I: EXECUTIVE SUMMARY ............................................................................. 8

CHAPTER II: INTRODUCTION ....................................................................................... 14


A. Background of the Report ................................................................................................................ 15
1. Context and Framework of the Report ...................................................................................................................... 15
2. Methodology and Objectives of the Report .............................................................................................................. 17
B. Background on the Rohingyas ....................................................................................................... 20
1. Terms Used and Administrative Structures ............................................................................................................ 20
2. Brief Historical Background to the Rohingyas ....................................................................................................... 22

CHAPTER III: LEGAL FRAMEWORK............................................................................. 28


A. Introduction – Why Adopt a Crimes against Humanity Framework? ............................. 29
B. The General Requirements of Article 7 of the Rome Statute .............................................. 31

CHAPTER IV: ENSLAVEMENT - FORCED LABOUR .................................................. 36


A. Factual Findings .................................................................................................................................. 37
1. The Exaction of Forced Labour in Burma ................................................................................................................. 37
2. The Exaction of Forced Labour in North Arakan State ....................................................................................... 40
2.1 The Nature of the Labour ........................................................................................................................................ 41
2.2 Forcible Nature of the Work and Treatment of Individuals..................................................................... 48
B. The Applicable Law: Forced Labour as an International Crime Bearing Individual
Criminal Responsibility ......................................................................................................................... 51
1. Forced Labour as an International Crime Bearing Individual Criminal Responsibility ....................... 51
2. Forced Labour as Enslavement: Jurisprudence in Brief ..................................................................................... 56
C. Preliminary Conclusions .................................................................................................................. 59

CHAPTER V: RAPE AND SEXUAL VIOLENCE ............................................................. 61


A. Factual Findings .................................................................................................................................. 62
1. Rape and Sexual Violence in Burma ............................................................................................................................ 62
1.1 Reports of Rape and Sexual Violence against Women and Girls ............................................................ 62
1.2 Access to Justice and Responses to Cases of Rape and Sexual Violence ............................................. 67
2. Rape and Sexual Violence in North Arakan State .................................................................................................. 69
2.1 Root Causes of Rape and Sexual Violence against Rohingya Girls and Women .............................. 70
2.2 Reports of Rape and Sexual Violence against Rohingya Girls and Women ....................................... 73
B. Prohibition of Rape and Sexual Violence under International Criminal Law and its
Application to the Rohingyas in North Arakan State .................................................................. 77
1. Development of the Legal Parameters of Rape and Sexual Violence by the ad hoc Tribunals ......... 77
2. Prohibition under the Rome Statute and its Application to the Situation of the Rohingyas .............. 78
C. Preliminary Conclusions .................................................................................................................. 80

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CHAPTER VI: DEPORTATION AND FORCIBLE TRANSFER OF POPULATION . 85


A. Factual Findings .................................................................................................................................. 86
1. Forced Displacement in Burma ..................................................................................................................................... 86
2. The Forced Displacement of the Rohingyas ............................................................................................................ 90
2.1 Forced Displacement of the Rohingyas: 1978 to 1992 .............................................................................. 91
2.2 The Root Causes of the Forced Displacement of the Rohingyas ............................................................ 93
B. The Prohibition of Forced Displacement under International Criminal and Human
Rights Law ............................................................................................................................................... 102
1. Deportation or Forcible Transfer of Population under Article 7(1)(d) of the Rome Statute: Does a
prima facie Case Exist with Respect to the Rohingyas?......................................................................................... 103
1.1 Scope of the Offence under Article 7(1)(d) as Derived from Existing Jurisprudence ................ 103
1.2 Why the Displacement of the Rohingyas is not Permissible under International Law ............. 106
2. The Link with “Ethnic Cleansing” ............................................................................................................................... 110
C. Preliminary Conclusions ............................................................................................................... 112

CHAPTER VII: PERSECUTION ..................................................................................... 114


A. Factual Findings ............................................................................................................................... 115
1. The Fundamentally Discriminatory Basis of Documented Violations: Placing Forced Labour, Rape
and Forcible Transfer in a Persecutory Context ....................................................................................................... 115

2. Arbitrary Detention, Torture, Murder and Other Inhumane Acts as Enumerated under Article 7 of
the Rome Statute..................................................................................................................................................................... 116
2.1 Arbitrary Detention or other Severe Deprivations of Physical Liberty in North Arakan ......... 118
2.2 Torture and other Forms of Inhuman or Degrading Treatment or Punishment .......................... 122
2.3 Murder ........................................................................................................................................................................... 123
3. Other Acts Constituting the Discriminatory Denial of Fundamental Rights Falling within the Scope
of Article 7(i)(h) of the Rome Statute ............................................................................................................................ 125
3.1 Marriage Restrictions Imposed on the Rohingyas ..................................................................................... 125
3.2 Denial of Freedom of Religion ............................................................................................................................. 132
3.3 The Imposition of Arbitrary and Extortionate Taxation ......................................................................... 133
B. The Applicable Law with Respect to the Crime against Humanity of Persecution: The
Denial of Fundamental Rights on Inherently Discriminatory Grounds ............................ 136
1. What Constitutes a Persecutory Act for the Purpose of Article 7(1)(h) of the Rome Statute? ....... 137
2. Applying the Facts to the Law: Does the Situation of the Rohingyas Constitute Persecution? ....... 140
C. Preliminary Conclusions ............................................................................................................... 143

CHAPTER VIII: CONCLUSIONS AND RECOMMENDATIONS ............................... 145


Conclusions ............................................................................................................................................. 146
Recommendations ................................................................................................................................ 151

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Maps

Source: http://www.un.org/Depts/Cartographic/map/profile/myanmar.pdf

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Source: http://www.unhcr.org/44103c925.html

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Abbreviations

AI Amnesty International
ARIF Arakan Rohingya Islamic Front
ARNO Arakan Rohingya National Organisation
ASEAN Association of South East Asian Nations
CEDAW Convention on the Elimination of All forms of
Discrimination against Women
CRC Convention on the Rights of the Child
DPDC District Peace and Development Council
FIDH Fédération Internationale des Ligues des Droits de
l’Homme
HRW Human Rights Watch
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and
Cultural Rights
ICHR Irish Centre for Human Rights
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former
Yugoslavia
ILO International Labour Organisation
NaSaKa Nat-Sat Kut-Kwey Ye (Burmese Border Security Force)
NaTaLa Ministry for Development of Border Areas and National
Races
NCGUB National Coalition Government of the Union of Burma
NLD National League for Democracy
NRC National Registration Card
RI Refugees International
RSO Rohingya Solidarity Organization
SCSL Special Court for Sierra Leone
SLORC State Law and Order Restoration Council
SPDC State Peace and Development Council
TPDC Township Peace and Development Council
TRC Temporary Registration Card
UDHR Universal Declaration of Human Rights
UN United Nations
UNTS United Nations Treaty Series
UNGA United Nations General Assembly
UNHCR United Nations High Commissioner for Refugees
VPDC Village Peace and Development Council

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Chapter I:
Executive Summary

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I. EXECUTIVE SUMMARY

The plight of the Rohingyas has become better known since the start of 2009, in
particular because of world-wide media coverage of the case of the so-called “boat
people”, consisting of hundreds of Rohingyas who attempted to reach Thailand by boat
and were subsequently mistreated there. Despite this new interest in the Rohingya
community, very little work has been done to examine the root causes behind their
continuous suffering. The Rohingyas are a Muslim minority group residing in North
Arakan State in Western Burma. It is estimated that there are approximately 800,000
Rohingyas in Arakan State, and many hundreds of thousands of Rohingya refugees in
other countries. There are disputes over the historical records, and whether the
Rohingyas are an indigenous group or whether in fact they began entering Burma in the
late 19th century. Even the very name ‘Rohingya’ has been disputed. Whatever position
is taken on these questions, it is undeniable that the Rohingyas exist, and have done so
for decades, as a significant minority group in North Arakan State. For many years, the
Rohingyas have been enduring human rights abuses. These violations are on-going and
in urgent need of attention and redress.

Irish Aid provided funding for independent research to be conducted by the Irish
Centre for Human Rights on the situation of the Rohingyas. The content and views
expressed in the resulting Report by the Irish Centre for Human Rights are entirely
those of the authors. This Report is based on a fact-finding mission to the region,
including Burma, as well as on extensive open-source research, and confidential
meetings with organisations working in the region. Much of the most important
information came from the many interviews conducted with Rohingya individuals in
and around refugee camps in Bangladesh, where they were able to speak more freely
than they can in Burma itself about the violations they had endured and which had
caused them to flee their homes.

The Report examines the situation of the Rohingyas through the lens of crimes
against humanity. The Rome Statute of the International Criminal Court and
international criminal law jurisprudence, especially that of the ad hoc International
Criminal Tribunals for the former Yugoslavia and Rwanda, are used to provide detailed
and clear legal foundations for the examination. As becomes evident in the individual
chapters, there is a strong prima facie case for determining that crimes against
humanity are being committed against the Rohingyas of North Arakan State in Burma.

Summary of findings

Forced Labour

The prohibition of forced labour constitutes a norm of customary international law. The
violation of this prohibition may qualify as an internationally wrongful act giving rise to
State responsibility and, in addition, falls within the definitional boundaries of the crime
of enslavement under the Rome Statute, thereby giving rise to individual criminal
responsibility.

The imposition of forced labour on the civilian population in Burma has been
documented over many years. For more than a decade, it has been monitored closely by

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the International Labour Organisation. As is the case throughout Burma, the


pervasiveness of forced labour varies throughout the territory of North Arakan State.
The Rohingyas of North Arakan State are one of the groups who suffer most from the
exaction of forced labour. Their location on the Burma-Bangladesh border where there
is a strong military presence, as well as the establishment of the Nay-Sat Kut-kwey Ye
(NaSaKa), have resulted in an even greater burden for the Rohingyas, as the security
forces became a main user of forced labour in Burma.

Numerous so-called “model villages” have also been built in high numbers in
North Arakan State and the authorities have used Rohingyas, and no other group, to do
the work. There is constant and ever-increasing discrimination against the Rohingyas; a
situation resulting in increased forced labour. As examined and described in the Report,
forced labour is exacted from the Rohingya population in several forms. These include
portering, building maintenance and construction, forced cultivation and agricultural
labour, construction and repair of basic infrastructure, and guard or sentry duty.

Individuals so engaged have the possibility of buying their way out of these
various forms of labour by providing weekly compensation, but they may not simply
reject forced labour requests. Failure to provide the number of days of labour ordered
for each household leads to harassment, beatings, killings and other abuses such as the
retributive abuse of family members.

The research and analysis in this Report strongly suggest that the crime of
enslavement, as provided for in the Rome Statute, is currently being committed against
the Rohingya population of North Arakan State.

Deportation and Forcible Transfer

Forced displacement of individuals, whether across borders or within a State, may give
rise to the offences of deportation or forcible transfer of population, as well as
constituting a violation of freedom of movement. In certain circumstances it may also be
referred to as ethnic cleansing. Deportation and forcible transfer are addressed in the
Rome Statute, and their understanding is further developed through existing
jurisprudence.

Forced displacement is a well-recognised phenomenon in Burma generally. The


displacement of the Rohingyas has a long history, with over 200,000 individuals fleeing
across the border to Bangladesh in 1978, and a larger number again in 1991-1992. A
steady stream of Rohingya refugees into Bangladesh, and other destinations, continues
to this day.

At the heart of this displacement – and indeed at the heart of many of the other
violations documented in this Report – is the enduring condition of Rohingya
statelessness and the refusal of the State Peace and Development Council (SPDC) to
acknowledge and regularize Rohingya citizenship. The Rohingyas have experienced
difficulties in obtaining citizenship since the early days of Burmese independence. The
laws and policies, in particular the 1982 Citizenship Law, are at the heart of a
discriminatory system which leaves the Rohingya ethnic minority without citizenship
and subsequently vulnerable to a myriad of violations, including forced displacement.

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Their movement is severely restricted and subjected to a strict licensing system. The
construction of model villages and of military installations as a result of the heightened
militarization of North Arakan State, has involved land confiscation and has further led
to the increased displacement of the Rohingyas. In addition, numerous cases of the
wholesale forced relocation/eviction of Rohingya villages have been documented since
the early 1990s. The manner in which this has occurred is arbitrary, violent and at times
fatal, and is a clear example of the crime of forcible transfer of populations. Generally,
this forced displacement has been caused by the creation of intolerable and coercive
conditions, culminating in Rohingyas fleeing across the border to Bangladesh or being
displaced from their homes while remaining within the region.

This Report indicates that these acts may be widespread and systematic and,
prima facie, amount to the commission of the crimes against humanity of deportation
and forcible transfer of population. With this information at hand, further investigation
by an internationally mandated body will also need to assess whether the
circumstances point to a policy of ethnic cleansing.

Rape and Sexual Violence

Recent decades have seen increased attention to international crimes involving rape
and sexual violence. This is evidenced in the jurisprudence of international criminal
tribunals, and in the Statute of the International Criminal Court. Rape and other forms of
sexual violence can, under the Rome Statute, be grounds for prosecution for crimes
against humanity.

Reports from a wide variety of non-governmental organisations and United


Nations bodies and representatives include a common view that rape and sexual
violence is an endemic problem in Burma, especially for ethnic minority women and
girls. Authorities regularly fail to effectively investigate alleged cases of rape, which
leads to the inability of those affected to obtain redress for violations. Victims, their
families, and witnesses of rape and sexual violence have reported being threatened,
intimidated and physically abused because of their allegations. The research conducted
for this Report, including confidential meetings and interviews of Rohingya refugees in
Bangladesh, includes troubling allegations of rape and sexual violence in North Arakan
State. The root causes of this type of abuse are numerous. Some are common
throughout Burma, while others are particularly apparent in North Arakan State. Burma
is a male-dominated society where women and girls hold traditional roles and generally
do not enjoy equal status with men. Rohingya society is also very conservative. In this
context, Rohingya women and girls are vulnerable to gender-based discrimination,
which can lead to sexual violence and rape.

The significant military presence in North Arakan State seems to be a prominent


cause of the prevalence of rape and sexual violence. In addition to gender-based
discrimination and the militarisation of North Arakan State, the perpetration of sexual
violence crimes and rapes against Rohingya girls and women frequently appears to be
linked to racial discrimination. It appears that Rohingya women and girls in North
Arakan State have been victims of rape and sexual violence, frequently at the hands of
soldiers and NaSaKa members. Testimonies gathered for this Report include cases in
which multiple female members of families – sisters, mothers and daughters – were all

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raped or sexually attacked. The rapes and sexual violence carried out by the military,
NaSaKa forces, and sometimes the police, appear to go beyond isolated, random, and
individual circumstances. The regularity of their occurrence, the context in which they
occur – e.g. during forced labour or in military bases - and the impunity of the
perpetrators, all invite the conclusion that these acts, together with the other offences
committed against the Rohingyas, provide prima facie evidence of crimes against
humanity under the Rome Statute.

Persecution

The above violations do not occur in isolation. For example, rape and sexual violence
occur during forced labour or when women are left alone because the men have been
taken for labour. Moreover, these violations appear to be directed in particular against
the Rohingya minority, as part of a general discriminatory approach. Consequently,
there arises a concern that the Rohingya minority are victims of the offence of
persecution. Under the Rome Statute, ‘“Persecution” means the intentional and severe
deprivation of fundamental rights contrary to international law by reason of the identity
of the group or collectivity’.

In addition to the above detailed offences, a number of other violations appear to


be committed against the Rohingyas. Arbitrary detention is a frequent occurrence, often
accompanied by extortion and demands for bribes. The research and interviews
conducted for this Report also reveal that these detentions are often found to be in
connection with the Rohingyas’ non-citizen status and the obstacles derived from it,
such as, for example, the travel permit system. As such, these detentions appear to
target the Rohingya minority in a discriminatory manner. Similar concerns are raised
with regard to murder, torture, and other ill-treatment. Whilst the Burmese regime has
been criticised for the prevalence of impunity for these violations throughout Burma,
once again, in North Arakan State, the Rohingyas appear to be singled out for such abuse
on account of their ethnic minority status.

Other acts also contribute to the apparent persecution of Rohingyas. One of the
less-recognised violations concerns the severe marriage restrictions imposed on the
Rohingya minority. These marriage restrictions are an insidious violation of human
rights with far-reaching and grave consequences. The field mission conducted for this
Report has revealed that the current marriage restrictions and the severe consequences
for non-compliance are amongst the main reasons why Rohingyas flee North Arakan
State. The restrictions prevent families from living together and result in unregistered
children growing up as individuals with no social and legal status. Extortion and
detention are often associated with the marriage restrictions. The Rohingya minority
are also exposed to widespread restrictions on their freedom of religion, including
obstacles with respect to the maintenance of mosques and schools, which has a further
detrimental impact on their right to education.

The many violations documented throughout this Report are clearly intertwined.
Linking them is the fact that their commission is widespread and systematic and
committed with discriminatory intent, i.e. because of the ethnic, racial and religious
make-up of the Rohingya community. Each category of violation is linked to the
discriminatory policies of the SPDC. From forced labour and rape to forcible

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displacement and marriage restrictions, the Rohingyas are targeted for abuse on
account of their minority status. In the absence of the most basic freedoms, resulting in
destitution and frequently death, hundreds of thousands of Rohingyas have been left
with no option but to flee their homes for the relative safety of neighbouring States.
Taken together and in context, the offences committed against the Rohingya minority
appear to present a case for the crime against humanity of persecution.

Conclusions

This Report finds that there is a reliable body of evidence pointing to acts
constituting a widespread or systematic attack against the Rohingya civilian population
in North Arakan State. These appear to satisfy the requirements under international
criminal law for the perpetration of crimes against humanity. After being hounded for
decades, it is time that adequate attention be given to the plight of the Rohingyas. The
root causes of the situation of the Rohingyas must be further assessed, as failure to do
so will undoubtedly lead to a bleak future for this ethnic minority group. People
committing, allowing, aiding and abetting these crimes must be held accountable. The
international community has a responsibility to protect the Rohingyas, to respond to
the allegations of crimes against humanity, and to ensure that violations and impunity
do not persist for another generation.

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Chapter II:
Introduction

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II. Introduction

The Rohingyas are a Muslim minority group residing in the


Arakan State in Burma. Arakan State is located on the western
coast of Burma; it shares its border with the Chin State to the
north, and to the east with the Magway, Bago and Ayeyarwady
Divisions. A range of mountains on the northeast physically
separates the Arakan State from the rest of Burma. Arakan is also
bordered by the Bay of Bengal to the west and by Bangladesh
(Chittagong Division) to the northwest. The Naf River, a long
estuary of around only two kilometres width separates the Cox’s
Bazar District of Bangladesh (on the western bank of the river)
from Arakan (on the eastern side). It is estimated that there are
800,000 Rohingyas in Arakan, constituting 25% of the
population. The Rohingyas reside mainly in North Arakan State
(in the townships of Buthidaung, Maungdaw and Rathedaung)
and comprise 80% of the population there. A large number of
Rohingyas live outside Burma, including over 200,000 in
Bangladesh.

A. Background of the Report

1. Context and Framework of the Report

The project leading to this Report was initiated at a time when the plight of the
Rohingyas in North Arakan State was not well known and had been overlooked for
years, despite allegations of serious human rights violations. During the first months of
this project, the story of the Rohingya “boat people” surfaced in the media. This story
concerned over a thousand Rohingyas who had fled Burma by boat, as has been
frequent practice in recent years following the rainy season when the sea becomes
more navigable. It was reported that hundreds of the Rohingyas had been towed back
out to sea by Thai authorities and left to die, while others were detained in Thailand.
This created a new interest, placing the situation of this ethnic group on the agenda of
the international community. Much of the attention and the condemnations, however,
were short-lived and focused on the treatment of the Rohingya “boat people” by
Thailand, rather than on the root causes of the situation in Burma itself. At the
beginning of 2010, Bangladeshi law enforcement agencies have been pushing back
unregistered Rohingyas into Burma and arresting others for immigration offences.1 This
___________________________________________________________________________
1 C. Lewa, The Arakan Project, ‘Unregistered Rohingya Refugees in Bangladesh: Crackdown, Forced
Displacement and Hunger’ (2010), available at http://www.burmalibrary.org/docs08/Bangladesh-
Crackdown.pdf; Physicians for Human Rights, ‘Stateless and Starving: Persecuted Rohingya Flee Burma
and Starve in Bangladesh’ (2010), available at
http://physiciansforhumanrights.org/library/documents/reports/stateless-and-starving.pdf at 6; MSF,
‘Violent Crackdown Fuels Humanitarian Crisis for Unrecognised Rohingya Refugees Bangladesh’ (2010),

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also was the object of some media attention. It is within this context that the present
Report was written, at a time when awareness has been raised and interest created.
Nevertheless, still more needs to be done to provide an in-depth examination of the
human rights violations of the Rohingyas by the Burmese authorities.

Irish Aid provided funding for independent research to be conducted by the Irish
Centre for Human Rights on the situation of the Rohingyas. The content and views
expressed in the resulting Report by the Irish Centre for Human Rights are entirely
those of the authors. The project leading to this Report was established to research and
examine the situation of the Rohingyas in the North Arakan State in Western Burma,
with an aim to a better understanding of the reasons behind their continuous flight. In
establishing the Rohingya project, the Irish Centre for Human Rights set out to: (i)
examine the root causes behind the flight of the Rohingyas, (ii) assess the human rights
violations committed against the group in North Arakan, (iii) establish whether the
violations could be said to amount to international crimes. In light of this it was agreed
at the outset that the Report would focus on the situation of the Rohingyas in North
Arakan State and not those in the countries of refuge, even if treatment of the latter can
sometimes also amount to human rights violations. It was decided that the examination
of the situation of the Rohingyas would not only be based upon extensive research, but
also on a fact-finding mission with the participation of a professional criminal
investigator, meetings with organisations on the ground and interviews with Rohingya
victims and witnesses of human rights abuses. This field component was added to
ensure that the Report would be based on first-hand investigation and include new
information.

The material gathered for the Report identified a wide range of human rights
violations against the Rohingyas in North Arakan State and provided a prime example of
the long-acknowledged indivisibility of all human rights. The material clearly
documented violations of the civil and political rights of the Rohingyas, including
violations of: the right to life, the prohibition of torture, prohibition of forced or
compulsory labour, due process rights, freedom of movement, the right to marry and
found a family, and freedom of religion. The information also confirmed that violations
of economic, social and cultural rights were on-going. They include violations of the
right to work and to enjoy just and favourable conditions of work, the right to
education, and the right to adequate standards of living, including adequate food. The
examination of this situation clearly showed that the deprivation of one type of right
was commonly affecting the others. The myriad of violations also appeared to be
occurring in a context of racism and general discrimination against the Rohingyas. The
research and fact-finding mission indicated that discrimination (including statelessness
and denial of citizenship) was in actual fact a cross-cutting issue at the basis of most
violations.

The facts examined clearly showed that human rights violations are committed
against the Rohingyas, and that the cases documented were not isolated acts. The
preliminary findings indicated that these violations are part of a protracted situation
involving policies of discrimination and persecution against this group. In comparison

available at http://www.msf.org/msfinternational/invoke.cfm?objectid=E031C39E-15C5-F00A-
2553C745B3E620C5&component=toolkit.report&method=full_html&mode=view.

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with violations occurring elsewhere in Burma, many of the abuses appeared to be more
prominent in the case of the Rohingyas in North Arakan State. Many additional
violations were specific to the Rohingyas. During the meetings conducted as part of this
Report, it was stated more than once by individuals working for international
organisations, that the level of abuse against the Rohingyas is amongst the worst they
have seen in relation to all their international experience, not only in Burma. With this
body of reliable material indicating that the Rohingya minority endure a daily life of
gross and systematic human rights violations, the Irish Centre for Human Rights elected
to examine the situation of the Rohingyas through the lens of crimes against humanity.

The totality of the abuses suffered by the Rohingya minority cannot be


encapsulated in a single report. Nonetheless, in the following chapters of this Report, a
number of the issues, identified through the research and fact-finding mission as being
amongst the worst that this group has to endure, are examined. In addition to providing
a short background on the Rohingyas (Ch. II) and presenting the legal framework for
this study (Ch. III), the Report addresses the following issues: Enslavement and forced
labour (Ch. IV), rape and sexual violence (Ch. V), deportation and forcible transfer of
population (Ch. VI), and persecution, including the above-mentioned acts as well as
torture, murder, arbitrary detention, the imposition of arbitrary taxation and extortion,
marriage restrictions and the denial of freedom of religion (Ch. VII). Many of the abuses
and issues raised with regard to other minorities and in Burma generally are relevant to
the situation of the Rohingyas. Accordingly, each chapter includes a presentation of the
facts, a discussion concerning the situation of the Rohingyas, and this is placed within
the context of Burma as a whole. A legal section provides an explanation of the
applicable international law, and a legal analysis of the factual findings provides an
assessment of whether these circumstances point to the perpetration of acts
enumerated in the Statute of the International Criminal Court, and could be said to
amount to crimes against humanity. The conclusions consider the overall situation, and
examine whether there are enough grounds to assert that crimes against humanity are
currently being committed against the Rohingyas in North Arakan State.

2. Methodology and Objectives of the Report

The idea for the project leading to this Report stems from an initiative by Guy Horton, a
human rights activist who has long been associated with Burma. This project was
undertaken with the aim of investigating and providing an assessment of the human
rights situation of the Rohingyas in North Arakan State. To implement its mandate the
Irish Centre for Human Rights established a research unit composed of Prof. William
Schabas (Director of the Irish Centre for Human Rights), Ms. Nancie Prudhomme
(Project Manager and Researcher), and Mr. Joseph Powderly (Project Researcher). The
research unit also carried out consultancies with a number of external experts. The
Report was built around preliminary meetings, extensive open-source research, and on
a four-week fact-finding mission in Burma, Thailand and Bangladesh.

The open-source research was carried out by the project researchers under the
supervision of Prof. Schabas. The research examined and analysed existing material on
the situation of the Rohingyas, ranging from historical information on their background,
through to reports by the few international and non-governmental bodies that had
occasion to address this issue. To gain further information that was not in the public

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domain, numerous confidential meetings were held with individuals from several
organisations working on the ground in North Arakan State. In addition to further first-
hand insight from those in a position to know, these meetings also provided the
researchers of this Report access to confidential documentation, further supporting the
findings. Many of the sources used cannot therefore be exposed by name in this Report,
for fear of reprisal or of jeopardising their work. All confidential information is,
however, recorded and can be verified. All the research, meetings, and documentation
provided a clear picture of the situation. However, the strongest – and most troubling –
information came, as expected, from the multitude of testimonies gathered from
individual members of the Rohingya minority.

During the first phase of the project, meetings were organised in London at the
Law Department at Middlesex University, a project affiliate. The first meeting took place
at the end of 2008. The following persons participated in the meeting: Project
researchers from the Irish Centre for Human Rights, representatives of Middlesex
University, Guy Horton, Chris Lewa (Rohingya expert and Coordinator of The Arakan
Project), and Ben Rogers (East Asia Team Leader, Christian Solidarity Worldwide). A
subsequent meeting took place at the beginning of 2009 and included the participation
of: Nurul Islam (President of the Arakan Rohingya National Organization (ARNO)),
several members of the Rohingya community, the Irish Centre for Human Rights’
researchers, and Middlesex University affiliates. The meeting with these experts
provided invaluable knowledge on the situation of the Rohingyas and filled potential
gaps in the open-source research. These consultations also supplied essential
information for the organisation of the fact-finding mission and allowed the researchers
to assess their preliminary findings.

A four week fact-finding mission was carried out in Thailand, Burma and
Bangladesh by the project’s researchers, both of whom are international lawyers
specialising in human rights, humanitarian law, and international criminal law, and who
have also undertaken specialised training in investigation of international crimes. For
the period of the mission in Bangladesh they were joined by Mr. John Ralston, Executive
Director of the Institute for International Criminal Investigations and former Chief of
Investigations at the International Criminal Tribunal for the former Yugoslavia and for
the UN Independent Commission of Inquiry for Darfur. Mr. Ralston led the mission in
Bangladesh, the longest part of the overall mission, during which most of the interviews
were conducted and testimonies gathered. The fact-finding mission conducted over 70
interviews with victims, witnesses and other individuals in possession of relevant
information on the situation of the Rohingyas in North Arakan State.

The fact-finding mission was undertaken under a number of constraints, most


notable being the geographical remoteness of North Arakan State and the fact that the
Burmese authorities have blocked access to the area. Most foreigners are not given
official permission to visit North Arakan State and only few international non-
governmental organisations and UN bodies have a field presence there. Most if not all
organisations officially have a humanitarian, as opposed to a monitoring, mandate and
they all work under the constant scrutiny of the Burmese authorities. International
organisations are generally unable to publicly discuss the situation and provide details
of on-going human rights violations or international crimes for fear that they would no
longer be allowed access to the region or country, which would both jeopardise their

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mission and deprive the population of much-needed assistance. The situation for local
organisations is similar and, in actual fact, the publication of highly controversial
material would not only compromise their work but could also be extremely dangerous
for the individuals involved. These obstacles presented challenges for the gathering of
information, and the work for the Report had to be planned appropriately and with
caution.
The mission in Thailand included meetings with international non-governmental
organisations, the participation at a round table discussion addressing the push-back at
sea of the Rohingya “boat people”, as well as work sessions with Chris Lewa, the main
international Rohingya expert and Coordinator of the Arakan Project. The second phase
of the mission was in Burma. Due to the restrictions, it was not possible to conduct the
research in North Arakan State itself. Instead, the mission focused on holding
confidential meetings in Rangoon (Yangon) and gathering further information from
individuals working with, and on issues related to, the situation of the Rohingyas. The
meetings in Burma did not include the participation of local workers, so as not to place
them at the very real risk of harsh reprisal. The bulk of the fact-finding mission was in
Bangladesh. It included meetings with representatives of international and regional
organisations, and with human rights and humanitarian workers. Interviews were also
conducted with leaders of the Rohingya community in Bangladesh, with representatives
of Kaladan Press, and a representative of the Rakhine community.

The interviews with refugees and asylum seekers conducted in Bangladesh


constituted the main component of the fact-finding mission; they provided a wealth of
further information and evidence of the severe abuses these individuals have suffered.
Hundreds of thousands of Rohingyas have fled to Bangladesh in past decades, and many
thousands are living there in a variety of formal refugee and makeshift camps. The
Rohingyas interviewed came mainly from four locations. These were the Kutupalong
and Nayapara refugee camps (two official camps in Cox’s Bazar District, managed by the
Bangladeshi government, and which together house 28,000 refugees). The third
location was the makeshift camp surrounding the Kutupalong official camp, where an
estimated 20,000 unregistered Rohingyas are now living without basic amenities. The
fourth location was the Leda settlement, where Rohingyas from the Teknaf squatter
camp were relocated with the support of the European Commission. By travelling to
these locations, it was possible to have access to Rohingya communities who were in
turn able to speak with less fear of reprisal than those in Burma.

The Report was written on the basis of this body of material and under the
supervision of Prof. William Schabas, author of several authoritative books in the area of
international criminal law and an acknowledged international authority in the field. The
objectives of this Report are many: Firstly, while a number of humanitarian
organisations have detailed knowledge of the human rights violations committed
against the Rohingyas, this material often remains unpublished. The organisations
working on the ground are unable to publicise their information for fear of jeopardising
their ability to work in Burma. This Report hopes to place the plight of the Rohingyas in
plain sight and expose the egregious violations they endure on a daily basis, so that
ignorance of their situation cannot be an excuse for inaction by the international
community. Secondly, some of the organisations seeking to provide humanitarian
assistance to the Rohingyas in Burma, Bangladesh, and elsewhere often do not have the
legal expertise or resources to undertake an assessment of the wide range of issues and

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violations committed against the Rohingyas. Yet, these organisations need such an
assessment as they cannot raise and allocate resources for their work with this group
without evidence of the need for it. This Report attempts to provide such detailed
information and a better understanding of the situation of the Rohingyas. Thirdly,
governments require objective and independent analysis of the circumstances behind
the on-going Rohingya flight, in order to inform their relevant policies. This ranges from
foreign policy issues in their dealings with Burma, to domestic policy with regard to the
acceptance and resettlement of Rohingya refugees. This Report seeks to provide such
analysis and assist governments in making these decisions. Finally, and most
importantly, this Report hopes to alert the international community to the desperate
situation of the Rohingyas and the international crimes being committed against them,
and to spark action to address what is currently a situation of total impunity. 2

While this Report focuses on the Rohingyas in North Arakan State, other recent
reports and studies have highlighted a wide range of disconcerting patterns of
violations throughout Burma,3 all of which are unlikely to be resolved if left to the
Burmese authorities. This Report hopes to complement these other initiatives, as it is
only through concerted and joint action by the international community that these
abuses are likely to be brought to an end, that the victims receive redress, and those
responsible be held accountable.

B. Background on the Rohingyas

1. Terms Used and Administrative Structures

Burma or Myanmar? Arakan or Rakhine State?

In the wake of the 1988 student uprising, the State Law and Order Restoration Council
[SLORC] (as it was called then), established the Commission of Inquiry into the True
Naming of Myanmar which led directly to the adoption of the Adaptation of Expressions
Law. This law stated that:

The expression “Union of Burma” and the expression “Burma”, “Burman” or


“Burmese” contained in existing laws enacted in the English language shall be
substituted by the expression “Union of Myanmar” and “Myanmar”
respectively.4

___________________________________________________________________________
2 For earlier reports which provide an overview of the situation of human rights of the Rohingyas in North
Arakan State, see Amnesty International (AI), ‘Myanmar. The Rohingya Minority: Fundamental Rights
Denied’, ASA 16/005/2004 (May 2004); International Federation of Human Rights (FIDH), ‘Burma:
Repression, Discrimination and Ethnic Cleansing in Arakan’, April 2000, No. 290/2.
3 See for instance International Human Rights Clinic at Harvard Law School, ‘Crimes in Burma’ (2009),

available at http://www.law.harvard.edu/programs/hrp/documents/Crimes-in-Burma.pdf;
FIDH, ALTSEAN-Burma and Burma Lawyers’ Council, ‘International Crimes Committed in Burma: The
Urgent Need for a Commission of Inquiry’ (2009), available at http://www.fidh.org/IMG/pdf/bu08.pdf;
Amnesty International, ‘Crimes against Humanity in Eastern Myanmar’ (2008), available at
http://www.amnesty.org/en/library/info/ASA16/011/2008/en; Oxford Pro Bono Publico, ‘Justice in
Burma’ (2008), available at
http://www2.law.ox.ac.uk/opbp/OPBP%20_%20PILPG%20Burma%20Report%20April%2008.pdf.
4 Permanent Committee on Geographical Names, An Introduction to the Toponymy of Burma, (October

2007), at 5, available at http://www.pcgn.org.uk/Burma%200907.pdf.

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The move by SLORC to effectively reconstruct the identity of the nation within the
international community was a manifestation of their drive to prove their domestic
dominance. The name change applied to all major English terms for ‘any state, division,
townships zone, township, town, ward, village tract or village, or the name of any river,
stream, forest, mountain or island’.5 SLORC argued that the use of the word “Burma”
corresponded to “Bama” which only referred to the majority ethnic group. The use of
“Myanma” – which in reality is simply the literary form of the spoken word “Bama” –
would, in their view, be more representative of the ethnic diversity of the country. The
name change has naturally been the subject of significant controversy. It was almost
immediately accepted by the United Nations; however, a number of states including the
USA, the United Kingdom and Ireland have refused to acknowledge the change and
continue to refer to the State as “Burma”. In justifying this position, the United States
Department of State has consistently commented that ‘some members of the democratic
opposition and other political activists do not recognize the name change and continue
to use the name “Burma”. Out of support for the democratic opposition, the U.S.
Government likewise uses “Burma”.’6 The UK Government has similarly stated that
‘Britain’s policy is to refer to Burma rather than “Myanmar”. The current regime
changed the name to “Myanmar” in 1989. Burma’s democracy movement prefers the
form “Burma” because they do not accept the legitimacy of the unelected military
regime and thus their right to change the official name of the country.’7 This Report
supports this position and will refer to all place names in their pre-1989 form. Similarly,
the official name of Arakan State is Rakhine State but the term commonly used by the
Rohingya community remains “Arakan”, and is accordingly employed in this Report.

Rohingya – A Disputed Term of Reference

Reference to the Muslims of North Arakan as “the Rohingyas” continues to be a


somewhat contentious issue in Burma. Arakan was formerly known as
Rohang/Roshang/Raham. The Rohingya name identifies the Muslims of Arakan as
natives of Rohang or of Arakan. Hence, “Rohingya” is synonymous with “Arakanese” or
“Rakhine”. The ethnic majority Rakhine fundamentally reject any suggestion that the
Rohingyas should be considered an ethnic group with bona fide historical roots in the
region; indeed, the Rakhines contend that they only encountered the word “Rohingya”
in the 1950s during the time of the Mujihid movement. A similar view is held by the
Arakanese Muslims resident outside of Maungdaw, Buthidaung and Rathedaung
townships, who did not support the independence and irredentist claims made by the
Rohingyas on a number of occasions since Burmese Independence in 1948. The
Rohingya community reject the argument that the term “Rohingya” was invented in the
1950s and contend that this is an ancient term that was used much before the Burmese
Independence.8 However, it is clear that the Muslims resident in North Arakan who
___________________________________________________________________________
5 Quoted in M.W. Charney, A History of Modern Burma, (Cambridge. Cambridge University Press, 2009) at
172-173.
6United States Department of State, Bureau of East Asian and Pacific Affairs, ‘Background Note: Burma’,

available at http://www.state.gov/r/pa/ei/bgn/35910.htm.
7 Foreign & Commonwealth Office, ‘Burma: Country Information’, available at,

http://www.fco.gov.uk/en/travel-and-living-abroad/travel-advice-by-country/country-profile/asia-
oceania/burma/.
8 In support of this argument see for instance F. Buchanan, ‘A Comparative Vocabulary of some of the

Languages Spoken in the Burma Empire’, (1799) 5 Asiatic Researches 219, reprinted in (2003) 1 SOAS
Bulletin of Burma Research, available at http://web.soas.ac.uk/burma/Comparative%20Vocabulary.PDF

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prefer to be designated “Rohingya” as opposed to “Burmese Muslim” have developed a


culture and language (a mixture of Chittagonian, Burmese, Hindi and English) which is
absolutely unique to the region.1 It is felt that the term “Rohingya” is a legitimate
identifier for this group and will be used throughout this Report.

Administrative Structures

It is necessary at the outset to give some idea of the nature of the administrative
structure within North Arakan State (and applying to Burma generally). The current
regime has referred to itself as the State Peace and Development Council, or SPDC, since
1997. The administrative structure in place is intended to insure that the SPDC is
present at all levels of Burmese society. The chief SPDC official in Arakan is the Western
Commander who has responsibility over all military and general administrative issues
in the State. The administrative structure fans out below him in the following way: (i)
District Peace and Development Council (DPDC) which controls Arakan’s four main
districts – Sittwe, Maungdaw, Kyaukphyu and Thandwe; (ii) Town Peace and
Development Council (TPDC) which oversees the 17 townships within the four districts;
and finally (iii) the Village Peace and Development Council (VPDC) which administers
each of the village tracts that make up the townships. In terms of military structures,
Arakan is formally divided into three regions, Southern Arakan, Kyauktaw and
Maungdaw-Buthidaung-Rathedaung.

2. Brief Historical Background to the Rohingyas

In order to fully understand the intractable nature of the situation of the Rohingyas of
North Arakan State, it is essential to get a sense of the historical and contemporary
social and political context in which their narrative is located. Burma has a rich ethnic
minority population with the country’s seven states taking their names (as altered in
1989) from their respective ethnic populations, i.e. Shan, Kachin, Chin, Kayin, Kayah,
Mon, and Rakhine. These states predominately occupy the border regions with the
central plains – home to the majority Burman people – being separated into seven
Divisions. Ethnic minority populations account for roughly 30% of the Burmese
population, with the Burman occupying the majority position. The Rohingyas are
overwhelmingly concentrated in the three North Arakan townships of Maungdaw,
Buthidaung and Rathedaung. It is impossible to cite a definitive figure in terms of their
number, but it is believed that roughly 800,000 Rohingyas are resident in these three
townships. The inter-generational presence of the “Rohingyas” (a disputed and
essentially self-identifying term which has been discussed above) in North Arakan State
has been consistently denied by successive Burmese regimes. The Rohingyas
themselves state that they are an indigenous Burmese ethnic group descended from the
first Muslim inhabitants of Arakan who arrived in or around the 9th century. According
to Moshe Yegar, whose works have been considered authoritative for some time, the
arrival of the Rohingyas in Arakan was precipitated by the development of trade routes
through the Bay of Bengal and the Andaman Sea.9

at 43. This article first published in 1799 uses the term Rohingya (Rovingaw) indicating that ‘[t]he
Mahommedans [Muslims]settled at Arakan, call the country Rovingaw’.
9 M.Yegar, Between Integration and Secession: The Muslim Communities of the Southern Philippines,

Southern Thailand, and Western Burma/Myanmar (Maryland. Lexington Books, 2002) at 19.

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Arakan sits on a line dividing Islamic and Buddhist Asia. The Rohingyas reflect
this geographic reality and are an ethnic mix of Bengalis, Persians, Moghuls, Turks and
Pathans. The majority ethnic group in Arakan is the Buddhist Rakhine. In this respect
Martin Smith has commented that:

[I]t is important to stress…that Arakan itself is an ethnic minority state and that
the problems of this territory are not simply internal problems between local
Muslims and Buddhists but also between Arakanese Buddhists, known as
Rakhines, and the central government in Rangoon. 10

Questions surrounding the historical presence of Muslims in Arakan lie at the heart of
the present situation of the Rohingyas, to the extent that two diametrically opposed
versions of the region’s history have emerged. Smith points out that, ‘after decades of
isolation, the whole crisis is overshadowed by a complete absence of reliable
anthropological or social field research, which means that different sides continue to
circulate – or even invent – very different versions of the same people’s histories’.11 This
Report will not attempt to categorically reconcile these competing histories, but rather
the primary objective of this section is to provide a basic, accepted introduction to the
Rohingyas as a minority group within Arakan State.

Successive Burmese regimes have refused to recognize the Rohingyas as an


ethnic minority in North Arakan. In 1992, the then Minister for Foreign Affairs U Ohn
Gyaw declared:

In actual fact, although there are 135 national races in Myanmar today, the so-
called Rohingya people are not one of them. Historically, there has never been a
“Rohingya” race in Myanmar…Since the first Anglo-Myanmar War in 1824,
people of Muslim faith from the adjacent country illegally entered Myanmar
Naing-Ngan, particularly Rakhine State. Being illegal immigrants they do not
hold immigration papers like other nationals of the country.12

However, this statement and others like it, utterly distort verifiable historical fact.
Generations of Rohingyas cannot simply be labelled illegal economic migrants. Arakan
was an independent kingdom until it was conquered by the Burmese King Bodawpaya
in 1784, and at times up to that point had also occupied southern parts of modern
Bangladesh.13 There were evidently strong ties, both economic and military, between
the Kingdom of Arakan and its Bengali neighbour. Yegar states that, ‘[f]rom the middle
of the sixteenth until the middle of the eighteenth centuries, Muslims served in the
Burmese army, generally in the king’s guard, and as riflemen’.14 The Rohingyas also
attach great importance to the reign of the Arakan King Narameikhla, who in tribute to
the support he received from the Bengali King Ahmed Shah of Gaur, ordered that he and

___________________________________________________________________________
10 M. Smith, ‘The Muslim “Rohingyas” of Burma’, Paper delivered at Conference of Burma Centrum
Nederland, 11 December 1995, at 2 (on file with authors).
11 Ibid., at 1.
12 Press Release of Minister for Foreign Affairs, U Ohn Gyaw, 21 February 1992.
13 C. Lewa, ‘The Rohingya: Forced Migration and Statelessness’, Paper submitted to the Centre of Refugee

Studies, Jadavpur University, Calcutta, February 2001 (on file with authors).
14 Yegar, Between Integration and Secession: The Muslim Communities of the Southern Philippines, Southern

Thailand, and Western Burma/Myanmar, supra note 9 at 20.

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his successors adopt Muslim honorifics.15 During this period there were significant
population flows between Chittagong and Arakan. However, with the annexation of
Arakan by the Burmese King Bodawpaya in 1784, the Muslim influence on the
administration of the region was significantly reduced. Having been deposed by
Bodawpaya, the Arakanese King Thamada fled to British-controlled Bengal and pleaded
for assistance. In the ensuing years, a protracted armed conflict along the
Bengal/Arakan border eventually precipitated the first Anglo-Burman War of 1824-25.
With the signing of the Yandabo Treaty in 1826, Arakan formally fell under the control
of the British, giving rise to a massive wave of Bengali (Indian) immigration into Arakan.
The statement of former Foreign Minister Gyaw quoted above is indicative of the
importance that the present (and indeed past) regimes have placed on the 1824 war. As
far as they are concerned, this conflict would open the gates to British colonial
domination and is the only reason the Rohingyas are present in Arakan today. As Smith
states:

[T]he date of 1824-25 and British colonization have become embedded in the
Burmese government’s mind with regards to the Muslim question and the
historic rights of Muslims to residency in Arakan. That there were Muslim
inhabitants in Arakan before 1824 is not in dispute; the argument is over their
ethnicity and numbers – and the starting point of the present troubles must
therefore be dated to the advent of British rule. 16

The large-scale influx of Indians into Arakan in the years of British rule led to
significant tension, and frequently violence, between ethnic communities.17 Flash-points
in this communal tension were frequent – anti-Indian riots broke out in 1930-31 and
1938 – and often resulted in loss of life. Throughout the Japanese occupation of Burma
during World War II, the Rohingyas remained loyal to the British, who promised to
reward them with their own independent Muslim State, and they were thus seen as
standing in the way of the Burmese independence movement, led by General Aung San,
who had struck an independence deal with the Japanese.18 During the Japanese
occupation which lasted from 1942-1945, it is estimated that up to 500,000 Indians and
Muslims fled Burma for the relative safety of British controlled territory:

Some were clearly following in the footsteps of the British government, but
others allege that they were brutally chased out by nationalists of Aung San’s
Burma Independence Army. Thousands are reported to have died of starvation,
disease or during sporadic military attacks in one of the darkest but least
reported incidents in modern Burmese history. 19

In the years following the war, the Rohingya leadership expressed both independence
and irredentist aspirations and went as far as to appeal to the President of the newly

___________________________________________________________________________
15 M. Smith, ‘The Muslim “Rohingyas” of Burma’, Paper delivered at Conference of Burma Centrum
Nederland, 11 December 1995, at 3 (on file with authors).
16 Ibid., at 4.
17 The FIDH has commented that ‘[u]nder British rule, the population of Arakan increased from less than

100,000 inhabitants to more than one million, as a result of a deliberate policy of relocating Muslim and
Hindu Indians in the East. This large-scale arrival of Indians led to the first communitarian tensions,
worsened by the economic recession’. FIDH, supra note 2 at 5.
18 For an excellent overview of the independence struggle see generally, M. Smith, Burma: Insurgency and

the Politics of Ethnicity, (London. Zed Books, 2nd edn., 1999) at Part I.
19 Smith, ‘The Muslim “Rohingyas” of Burma’, supra note 10, at 5.

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established State of Pakistan for incorporation into East Pakistan. Smith comments that,
‘this move more than any other…determined the present-day governmental attitude
towards the Rohingyas: they had threatened Burma’s territorial integrity on the eve of
independence and could never be trusted again’.20 It also forms the basis of the frequent
claims that the Rohingyas are simply foreigners or “Kala” intending on seceding from
the Union of Burma.

Burma successfully gained independence in 1948, but this only gave rise to
increased political violence throughout ethnic minority regions of the State which
continue to rage to the present day. The British Government did not follow through on
its purported promise to establish an independent Muslim State in the territory of North
Arakan, resulting in the establishment of a Mujahid movement which demanded
autonomy within the Union of Burma. During the democratic era spanning from
independence in 1948 to General Ne Win’s military coup in 1962, the position and
status of the Rohingyas gradually improved. In 1961, the U Nu government signed a
series of ceasefire agreements with Mujahid groups and created the Mayu Frontier
Administration Area (MFA) covering the Maungdaw, Buthidaung and Western
Rathedaung districts. The MFA was controlled directly from Rangoon and offered a
certain amount of autonomy to Rohingya-dominated areas. However, with General Ne
Win’s successful coup d’etat in 1962 and the imposition of the “Burmese Way to
Socialism”, the MFA was dissolved and the oppression of the Rohingyas was reignited in
earnest:

Under General Ne Win, human rights abuses and the coercion of the civilian
population – including forced labour and forced relocations – became almost
routine in many ethnic minority regions of the country, especially under a
draconian military operation known as the “Four Cuts”, which was similar in
intent to the strategic hamlet operation of the USA in Vietnam. Significantly, it
has been the use of such brutal tactics as these in Arakan that many Muslim
leaders claim has been the main cause of the dramatic flight of several thousand
Muslim inhabitants from Burma on two different occasions in the past twenty
years.21

The 1974 Constitution granted Arakan statehood within the Union of Burma. However,
in a conscious policy decision, Arakan was given the official title of Rakhine State. In
1977 Ne Win instigated Operation Nagamin (“King Dragon”), whose aim was to
‘scrutinize each individual living in the State, designating citizens and foreigners in
accordance with the law and taking actions against foreigners who have filtered into the
country illegally’.22 While the operation was purportedly nationwide, in Arakan it acted
as a vehicle for the commission of extreme violence against the Rohingyas. As outlined
in considerable detail in chapter VI below on the crime against humanity of deportation
or forcible transfer of population, Operation Nagamin led to the mass exodus of some
200,000 Rohingyas across the Burma-Bangladesh border.23 By the end of 1979,

___________________________________________________________________________
20 Smith, Burma: Insurgency and the Politics of Ethnicity, supra note 18 at 41.
21 Smith, ‘The Muslim “Rohingyas” of Burma’, supra note 10 at 8. For an in-depth study of the history of
the Rohingya to 1962 see, M. Yegar, The Muslims of Burma: A Study of a Minority Group, (Wiesbaden. Otto
Harrassowitz, 1972).
22 Statement by the Ministry for Home and Religious Affairs, 16 November 1977, quoted in Human Rights

Watch (HRW), ‘The Rohingya Muslims: Ending a Cycle of Exodus’, September 1996, Vol.8 No. 8(c) at 11.
23 See Chapter VI (Deportation or Forcible Transfer of Population).

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following an international outcry, the majority of those who had fled had returned;
however, the conditions on the ground would continue to deteriorate.

In 1982, Ne Win passed the now notorious Citizenship Law (also examined in
detail in chapter VI), which effectively made it impossible for the Rohingyas to be
recognized as full Burmese citizens, placing them in the relative legal limbo that is
statelessness. Following the democracy uprisings of 1988, Ne Win gave way to the so-
called State Law and Order Restoration Council or SLORC, controlled by Senior General
Than Shwe. The express objective of SLORC was supposedly to get the country into a
state of readiness for democratic elections to be held in 1990. Interestingly, the
Rohingyas, despite the majority not having full citizenship were allowed to both run and
vote in these now infamous elections. However, in July 1990 SLORC declared that a
national government to be led by Daw Aung San Suu Kyi’s National League for
Democracy Party (NLD) would not take office, and instead a constituent assembly
would be formed in order to draft a new constitution under which fresh elections could
take place.

The refusal of SLORC to hand over power to the democratically elected NLD
government unsurprisingly provoked country-wide protests. The SLORC needed a
diversion: they chose the Rohingyas.24 North Arakan State was rapidly militarized for
the alleged aim of both quelling the Rohingya insurgency movement – which consisted
for the most part of a few hundred guerilla fighters operating under the banner of either
the Rohingya Solidarity Organization (RSO) or the Arakan Rohingya Islamic Front
(ARIF) – and securing the Burma-Bangladesh border.

In 1992, the Nay-Sat Kut-kwey Ye (NaSaKa) was established. The NaSaKa is a


border security force consisting of members of the police, Military Intelligence, the
internal security or riot police (known as Lon Htein), customs officials, and the
Immigration and Manpower Department.25 It operates in North Arakan State, and, as
will become clear from the factual findings of this Report, it is the primary perpetrator
of crimes against the Rohingyas. The rapid increase in the military presence in North
Arakan gave rise to an intensification of oppressive tactics against the Rohingyas. The
situation was such as to precipitate a second mass exodus across the Burma-Bangladesh
border. As is discussed in chapter VI below, between May 1991 and March 1992
approximately 270,000 Rohingyas sought refuge in the Cox’s Bazar region of
Bangladesh. The United Nations High Commissioner for Refugees (UNHCR) established
a series of camps to address the needs of fleeing Rohingyas. By 1996, a large proportion
had been repatriated to North Arakan26 and the UNHCR continued to maintain only two
camps – the Nayapara and Kutupalong camps – which together contain approximately
28,000 Rohingya refugees.

___________________________________________________________________________
24 B. Lintner, ‘Diversionary Tactics: Anti-Muslim campaign seen as effort to rally Burmans’, Far Eastern
Economic Review, 29 August 1991. See also, FIDH, ‘Burma: Repression, Discrimination and Ethnic
Cleansing in Arakan’, supra note 17 at 6; HRW, ‘The Rohingya Muslims: Ending a Cycle of Exodus’, supra
note 22 at 12.
25 AI, supra note 2 at 5.
26For an in-depth examination of controversies surrounding the repatriation process see: FIDH, ‘Burma:

Repression, Discrimination and Ethnic Cleansing in Arakan’, supra note 17; and HRW, ‘The Rohingya
Muslims: Ending a Cycle of Exodus’, supra note 22.

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In the intervening years the military presence has been maintained and possibly
intensified in North Arakan State. In 1997, SLORC reconstituted itself as the State Peace
and Development Council, or SPDC. Following the events of 11 September 2001, the
SPDC publicly supported the United States’ “War on Terror” and have since then used
this as an excuse to continue to implement their strategy of ethnic oppression in North
Arakan.27

There has not been a mass exodus of Rohingyas from Arakan on remotely the
same scale as that of 1991-1992. As is explored in chapter VI, part of the function of the
NaSaKa is to ensure that such an exodus, which would attract the attention of the
international community, does not happen. Instead, the NaSaKa oversees the more
gradual movement of refugees from North Arakan across the Naf River and into the
Cox’s Bazar region of Bangladesh. At present it is thought that somewhere in the region
of 200,000 unregistered Rohingya refugees are currently located in the Cox’s Bazar
region of Bangladesh, with additional numbers in Pakistan, Saudi Arabia, Malaysia,
Thailand, Indonesia, the United Arab Emirates, and Japan. Finally, it is worth noting that
many Rohingyas were granted temporary registration cards and permitted to vote in
the widely discredited referendum on the new Burmese Constitution that was held in
the immediate aftermath of Cyclone Nargis in May 2008.

The objective of the foregoing was not to present an exhaustive history of the
Rohingyas of North Arakan State, but rather to give a sense of the historical context in
which the acts documented in this Report reside.

___________________________________________________________________________
27 See, A. Selth, ‘Burma’s Muslims and the War on Terror’, (2004) 27 Studies in Conflict & Terrorism 107.

27
Chapter III:
Legal Framework

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III. LEGAL FRAMEWORK

A. Introduction – Why Adopt a Crimes against Humanity Framework?

The decision to locate the conduct documented in this Report within the legal
framework of crimes against humanity, as derived from Article 7 of the Rome Statute of
the International Criminal Court, was reached following consideration of all alternative
legal regimes. At the outset four alternate frameworks appeared to be potentially
applicable to the situation of the Rohingyas, namely: war crimes, crimes against
humanity, genocide [all three of which fall under the umbrella of international criminal
law], and obligations arising out of international human rights law. Looking briefly at
each of these options, the nature of the acts committed against the Rohingyas most
appropriately falls within the ambit of crimes against humanity.

War Crimes

Despite the fact that the vast majority of documented acts are committed by various
State security agencies (including the Burmese Army/Tatmadaw), there is absolutely no
indication of the existence of a protracted armed conflict in North Arakan State that
would trigger the application of law of armed conflict. The SPDC [and SLORC before
them] have consistently attempted to legitimize the dense militarization of North
Arakan State on the basis of what they believe to be a terrorist Islamic insurgency.
However, while in the 1980s and 1990s there were sporadic “insurgent acts” principally
carried out by the Rohingya Solidarity Organization [RSO], there is absolutely no
evidence to suggest that such acts are ongoing or even come close to constituting an
armed conflict.1 A law of armed conflict/war crimes framework is therefore not
applicable to the situation.

Genocide

The universally accepted definition of genocide under Article 2 of the Convention on the
Prevention and Punishment of the Crime of Genocide states that ‘genocide means any of
the following acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such’.2 On the basis of a simplistic analysis of the
factual findings of this Report, it may be possible to put forward an argument to the
effect that the SPDC are actively engaged in perpetrating genocide against the
Rohingyas. Indeed, a number of exiled Rohingya political groups have been attempting
to propose a similar argument since the 1990s. 3 Recent case law suggests an
unwillingness of international tribunals and other bodies to interpret the scope of
genocide as going beyond the intentional physical destruction of a group. 4 Under the

___________________________________________________________________________
1 M. Smith, ‘The Muslim “Rohingyas” of Burma’, Paper delivered at Conference of Burma Centrum
Nederland, 11 December 1995 (on file with authors).
2 Convention on the Prevention and Punishment of the Crime of Genocide, (1948), entered into force 12

January 1951, 78 UNTS 277 at article 2.


3 ‘Joint Statement of Arakan Rohingya National Organization (ARNO) and Burmese Rohingya Organization

UK (BROUK)’, issued in London on 26 January 2009 – referring to ‘slow-burning genocide’ (on file with
authors).
4 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007.

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circumstances, it does not seem useful at this stage to pursue an analysis that
necessarily depends on an expansive approach to the definition of genocide.

International Human Rights Law

All of the acts documented in this Report constitute gross violations of international
human rights law. As a body of law, it certainly applies to the situation of the Rohingyas,
and while linked in certain respects to crimes against humanity it must be considered a
separate and distinct body of law. Human rights violations, when gross and systematic,
rather than isolated or individual, often correspond to crimes against humanity;
however, individuals may be prosecuted for crimes against humanity, and must be
shown to have knowledge and intent, whereas human rights violations are addressed
from the standpoint of State responsibility. Burma has a regrettable, if unsurprising
record when it comes to ratifying international human rights instruments. It is not a
party to either the International Covenant on Civil and Political Rights or the
International Covenant on Economic, Social and Cultural Rights. The most notable
exceptions to this pattern of avoidance are its ratification of the Convention on the
Rights of the Child, and the Convention on the Elimination of All Forms of
Discrimination against Women. Burma is naturally subject to recognized norms of
customary international law, and this will be relevant in 2011 when it will be subject to
the Universal Periodic Review mechanism of the Human Rights Council. Indeed, many of
the findings in this Report with respect to crimes against humanity will be relevant to
that process.

Applying the crimes against humanity framework to the situation of the


Rohingyas of North Arakan State is dependent on establishing the presence of the core
general or contextual requirements (also sometimes referred to as ‘chapeau’) of this
category of international criminal conduct. With over six decades of jurisprudence to
draw on, it can be said that the general definitional boundaries of crimes against
humanity are well-established: A crime against humanity is distinguished from an
ordinary crime by the fact that it consists, by its very nature, of certain enumerated acts
(Article 7 of the Rome Statute provides for murder, extermination, enslavement,
deportation or forcible transfer of population, imprisonment or other severe
deprivation of physical liberty, torture, rape and sexual violence, persecution, enforced
disappearance, apartheid, or other inhumane acts) committed as part of a ‘widespread
or systematic attack directed against any civilian population’.5 This presence of a
‘widespread or systematic attack directed against any civilian population’ constitutes at
a basic level the general requirement for crimes against humanity, which, as Guénaël
Mettraux points out, ‘must be seen as a whole’ and within the ‘necessary context in
which the acts of the accused must be inscribed’.6
___________________________________________________________________________
5 See inter alia: Prosecutor v. Kunarac et al., (Appeal Judgment) IT-96-23-T & IT-96-23/1-T (12 June 2002)
at para. 85; Prosecutor v. Blaškić, (Trial Judgment) IT-95-14-T (3 March 2000) at para. 199; Prosecutor v.
Tadić, (Appeal Judgment) IT-94-1-A (15 July 1999) at para. 248; Prosecutor v. Akayesu, (Trial Judgment)
ICTR-96-4-T (2 September 1998) at para. 577; Prosecutor v. Kayishema & Ruzindana, (Trial Judgment)
ICTR-95-1-T (21 May 1999) at para. 123; Prosecutor v. Lukić & Lukić, (Trial Judgment) IT098-32/1-T (20
July 2009) at para. 872.
6 G. Mettraux, International Crimes and the ad hoc Tribunals (Oxford. Oxford University Press, 2005) at

155. See also M. McAuliffe de Guzman, ‘The Road from Rome: The Developing Law of Crimes against
Humanity’, (2000) 22 Human Rights Quarterly 335 at 337 - The chapeau of crimes against humanity
serves two primary functions. First, it establishes a jurisdictional regime under which crimes of a

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The primary objective of this chapter is to lay the foundations for the application
of the crimes against humanity framework, as enumerated in Article 7 of the Rome
Statute, to the situation of the Rohingyas. In considering the requirement that there
must exist a ‘widespread or systematic attack directed against a civilian population’, the
following section provides a brief explanation of the constituent elements of this
criteria, while also resolving any difficulties that might be presented with respect to the
relevance of the crimes against humanity framework vis-à-vis the acts perpetrated in
North Arakan State.

B. The General Requirements of Article 7 of the Rome Statute

Determining the general requirements for crimes against humanity was one of the most
hotly debated issues during the drafting of the Rome Statute of the International
Criminal Court.7 However, the wording decided upon in Article 7(1) is quite
straightforward, and relatively uncontroversial. It reads:

For the purpose of this Statute, ‘crime against humanity’ means any of the
following acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack. 8

On the face of it, there are five prerequisites (four contextual and one mental element)
for the applicability of crimes against humanity:9

(i) There must be an attack.


(ii) The acts of the perpetrator must be part of the attack.
(iii) The attack must be directed against any civilian population.
(iv) The attack must be widespread or systematic.
(v) The perpetrator must have knowledge of the wider context of the attack.

To this we can add an additional requirement for the applicability of Article 7(1),
included in Article 7(2)(a) and reiterated in the Elements of Crimes drafted by the
States Parties and used interpretational aid to the Rome Statute,10 namely that the

particular gravity – crimes that are either widespread or systematic – become the concern of the
international community as a whole. Second, the mental element in the chapeau elevates the culpability of
the individual accused from that associated with an ordinary crime under domestic law to that of an
international crime.
7 For instance, some states argued that crimes against humanity could only be committed during times of

armed conflict (as provided for in the Statute of the Yugoslavia Tribunal), and others (albeit only a few)
contending that they must be committed on discriminatory grounds (as provided for in the Statute if the
Rwanda Tribunal). See D. Robinson, ‘The Elements for Crimes against Humanity’, in R.S. Lee (ed.) The
International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (New York.
Transnational Publishers, 2001) at 57-65.
8 Rome Statute of the International Criminal Court (1998), UN Doc. A/CONF.183/9, entered into force 1

July 2002, 2187 UNTS 90, [hereinafter Rome Statute] at art. 7(1).
9 Kunarac et al. Appeal Judgment, supra note 5, at para. 85. These prerequisites have been reiterated on

several occasions such as in Prosecutor v. Naletilić et al., (Trial Judgment) IT-98-34-T (31 March 2003) at
para. 233.
10 The Final Act of the Diplomatic Conference at Rome provided for the establishment of a Preparatory

Commission to oversee. inter alia, the drafting of the Elements of Crimes [hereinafter referred to as the
Elements] and the Rules of Procedure and Evidence of the Court, both of which were subsequently

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perpetrator acted ‘pursuant to or in furtherance of a State or organizational policy to


commit such [an] attack’.11 Using relevant case-law, the following subsections will
unpack the most relevant of these prerequisites12 in order to get to the core of the
general requirements for crimes against humanity, while also highlighting any issues
relevant to our analysis of the Rohingyas. Since requirement (v) above relates to the
intent of the individual perpetrator and is thus beyond the scope of this study it is not
necessary to consider it in the present context.

(i) There must be an attack

As mentioned above, the elaborative provision of Article 7(2)(a) states that for the
purpose of Article 7(1):

“[a]ttack directed against any civilian population” means a course of conduct


involving the multiple commission of acts referred to in paragraph 1 against any
civilian population, pursuant to or in furtherance of a State or organizational
policy to commit such attack.13

The Elements of Crimes document, in seeking to provide further clarification, adds that
the attack ‘need not constitute a military attack’.14 Both the Yugoslav and Rwanda
Tribunals have stressed that an “attack” for the definitional purposes of crimes against
humanity is ‘not limited to [the] use of armed force, but rather encompasses any
mistreatment of the civilian population’.15 As far as the Yugoslav Tribunal was
concerned in the Kunarac case, ‘an “attack” in the context of a crime against humanity
can be defined as a course of conduct involving the commission of acts of violence’.16
This interpretation of “attack” as a course of conduct – involving the commission of
singular or multiple enumerated acts – not necessarily taking place in the context of a
military operation or exclusively in times of armed conflict is clearly supported by the
terms of Articles 7(1) and 7(2)(a), and more importantly is reflective of customary
international law on the subject.17 To be clear, there is absolutely no requirement that
there be a nexus or link between the alleged crimes against humanity and an armed
conflict. Therefore, in the context of this Report the non-existence of a state of armed
conflict in North Arakan State is in no sense a bar to the applicability of the crimes
against humanity framework. Of particular importance to certain aspects of the factual
findings of this Report is that the “attack” need not involve the commission of acts of
violence as such.18

adopted by the Assembly of States Parties and appended to the Rome Statute. The Elements are intended
to act as a consultative, clarifying document which essentially aid the Court in arriving at the appropriate
interpretation of the crimes falling within the jurisdiction of the Statute.
11 Elements of Crimes, Doc. ICC-ASP/1/3, at 5.
12 Since it is beyond the scope of this report to deal with alleged individual perpetrators it is unnecessary

to examine in any great detail the mens rea or mental element of the offence.
13 Rome Statute, supra note 8 at art. 7(2)(a).
14 Elements of Crimes, supra note 11.
15 G. Boas et al. (eds.) International Criminal Law Practitioner Library – Volume II – Elements of Crimes

Under International Law (Cambridge. Cambridge University Press, 2008) at 42.


16 Prosecutor v. Kunarac et al., (Trial Judgment) IT-96-23-T & IT-96-23/1-T at para. 415.
17 Prosecutor v. Tadić, (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1-

AR72 (2 October 1995) at para. 141: ‘It is by now a settled rule of customary international law that crimes
against humanity do not require a connection to international armed conflict.’
18 See Akayesu. Trial Judgment, supra note 5 at para. 581.

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(ii) The acts of the perpetrator must be part of the attack

There must be a link between the alleged acts and the attack on the civilian population.
The Yugoslav Trial Chamber summed up this requirement in a number of judgments,
including the Naletilić trial judgment, where it stated that, ‘[t]he acts of the accused
must not be isolated but form part of the attack... [t]his means that the act, by its nature
or consequence, must objectively be part of the attack’.19 Applying this to the situation
in North Arakan State, we see that there must be some link between the documented
conduct and the widespread or systematic attack on the Rohingya population. Criminal
conduct, such as, random murders or torture, carried out by individual members of the
army, NaSaKa or the police, will only rise to the level of crimes against humanity if it can
be reasonably linked to the broader ‘attack’ on the civilian population. The issue of a
link between the individual conduct and the attack will arise in the course of specific
prosecutions directed against individual suspects.

(iii)The attack must be directed against any civilian population

In order for the acts to constitute crimes against humanity they must be ‘directed
against any civilian population’. The requirement that the civilian population be the
primary object of the attack goes to the very heart of crimes against humanity.20 The
inclusion of the noun “population”, does not imply that the attack be directed at the
entirety of a territory as such, but rather acts as a safeguard against the prosecution of
single or isolated acts. In this respect, the Rwanda Tribunal in the Baglishema case held
that the term “civilian population” should be interpreted as implying the commission of
crimes of a collective nature.21 The inclusion of the pronoun ‘any’ has been interpreted
to mean that crimes against humanity may be committed against civilians, irrespective
of their nationality or their possible status as stateless persons,22 a principle which, as
will be shown, is of particular importance to the situation of the Rohingyas.

The meaning of “civilian” has been interpreted to mean anybody who is not a
combatant at the time of commission of the relevant acts.23 The population in question
must be predominantly civilian, meaning that the attack must be clearly directed against
the civilian population, notwithstanding the possible presence of combatants.24 As
William Schabas points out, ‘the concept of “civilian population” should be construed
liberally, in order to promote the principles underlying the prohibition of crimes against
humanity, which are to safeguard human values and protect human dignity’. 25 There is
absolutely no doubt that the Rohingya population of the three principle townships

___________________________________________________________________________
19 Naletilić et al. Trial Judgment, supra note 9 at para. 234. See Tadić. Appeal Judgment, supra note 5 at
para. 271.
20 For guidance on how to identify that an attack has in fact been directed against a civilian population

see: Kunarac et al. Appeal Judgment, supra note 5 at para. 91.


21 Prosecutor v. Baglishema, (Trial Judgment) ICTR-95-1A-T (7 June 2001) at para. 80.
22 Prosecutor v. Tadić, (Trial Judgment) IT-94-1-T (7 May 1997) at para. 635.
23See Common Article 3 to the Geneva Conventions of 1949 and Protocol Additional to the Geneva

Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts
(Protocol I), entered into force 7 December 1978, 1125 UNTS 3 at art. 50.
24 Prosecutor v. Blagojević et al., (Trial Judgment) IT-02-60-T (17 January 2005) at para.552.
25 W. A. Schabas, The UN International Criminal Tribunals: The former Yugoslavia, Rwanda and Sierra

Leone (Cambridge. Cambridge University Press, 2006) at 191.

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where the documented conduct is focused (Maungdaw, Bauthidaung and Rathedaung)


is overwhelmingly civilian.

(iv) The attack must be widespread or systematic

Crimes against humanity are distinguishable from ordinary crimes by the fact that they
are committed on a “widespread or systematic” basis. In effect, this is the threshold test
for crimes against humanity. This requirement is disjunctive, and operates so as to
exclude the commission of isolated acts. In terms of individual meanings, “widespread”
refers to the scale of the acts or the number of victims,26 while “systematic” refers to a
pattern or methodical plan.27 Unsurprisingly, both criteria have tended to overlap in the
jurisprudence.28 A number of factors must be taken into consideration in assessing
whether an attack is widespread or systematic. In this regard, the Yugoslav Appeals
Chamber in Kunarac stated that:

The assessment of what constitutes a “widespread” or “systematic” attack is


essentially a relative exercise in that it depends upon the civilian population
which, allegedly, was being attacked. A Trial Chamber must therefore “first
identify the population which is the object of the attack and, in light of the
means, methods, resources and result of the attack upon the population,
ascertain whether the attack was indeed widespread or systematic”. The
consequences of the attack upon the targeted population, the number of victims,
the nature of the acts, the possible participation of officials or authorities or any
identifiable patterns of crimes, could be taken into account to determine
whether the attack satisfies either or both requirements...29

This Report clearly establishes that the documented acts have been perpetrated against
the Rohingyas on both a widespread and systematic basis, with reason to believe that
they form part of a broader State policy or plan for the commission of such acts.

(v) There must be a State or organizational policy to commit such [an] attack

The Elements of Crimes document provides that, ‘[i]t is understood that “policy to
commit such attack” requires that the State or organization actively promote or
encourage such an attack against a civilian population’.30 It has been suggested that the
inclusion of the existence of an organizational policy is intended to refer to non-State
actors or private individuals who exercise de facto power.31 In this way the provision
reflects the fact that individuals with no formal link to a State entity can commit crimes
under international law.32 On the face of it, it may appear to be quite a restrictive
___________________________________________________________________________
26 Akayesu, Trial Judgment, supra note 5 at para. 580: ‘The concept of “widespread” may be defined as
massive, frequent, large scale action, carried out collectively with considerable seriousness and directed
against a multiplicity of victims.’
27Tadić, Trial Judgment, supra note 22 at para. 648; Kunarac et al. Appeal Judgment, supra note 5 at para.

94: ‘the phrase “systematic” refers to “the organised nature of the acts of violence and the improbability
of their random occurrence”.’
28 Mettraux, International Crimes and the ad hoc Tribunals, supra note 6 at 171. The judgment in Kunarac

found that the attack was only systematic: Kunarac et al. Trial Judgment, supra note 16 at para. 578.
29 Kunarac et al,. Appeal Judgment, supra note 5 at para.95.
30 Elements of Crimes, supra note 11 at 5.
31 O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2nd edn.

Baden-Baden. C.H. Beck Hart Nomos München Oxford, 2008) at 236-237.


32 Ibid.

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requirement; however, establishing the existence of a widespread or systematic attack


implies an element of planning or policy.33 Its inclusion in Article 7 certainly does not
have a restrictive effect on the applicability on crimes against humanity. Unsurprisingly,
the conclusions of this Report with respect to the possible existence of a specific State
policy or plan for the commission of crimes against humanity in the territory of North
Arakan State are not based on hard documentary evidence – such evidence being
impossible to obtain – but on the testimonies of victims, and on the basis of
overwhelming circumstantial evidence.

Naturally, it is not within the scope of this Report to make a factual


determination as to the presence of each of the general requirements of crimes against
humanity. The objective of the following chapters, which deal with the commission of
prohibited acts falling within the ambit of Article 7 of the Rome Statute, is to examine
whether crimes against humanity are prima facie taking place in Arakan State based on
field research and secondary material of authoritative bodies, institutions and
individuals.

___________________________________________________________________________
33See D. Robinson, ‘ “Crimes against Humanity” at the Rome Conference’, (1999) 93 American Journal of
International Law 43 at 48-49. However, the inclusion of the adverb “actively” in the Elements of Crimes
appears to add a further restrictive dimension to the requirement and is intended to ensure that a policy
or plan cannot be inferred from the mere inaction of the State or organization. See Elements of Crimes,
supra note 11 at 5, footnote 6.

35
Chapter IV:
Enslavement–Forced Labour

I was required to provide labour usually for I left Myanmar five months ago. I
a total of one month per year. During this worked on the Maungdaw to
time I would do whatever the authorities Buthidaung road. I had to do forced
asked, the gathering of firewood; the labour together with some neighbours.
construction of a shrimp/prawn culture The authorities asked us to do the
embankment, etc. One time I was taken to labour. If we said no, we would be
do forced labour for 26 days. The forced subjected to hostilities. I was required
labour was 46 miles from my home and I to do forced labour four times per
had to sleep in the open along with 200 month, six to eight days per month. I
other people. 300 people from my village worked on road construction and had
were involved in this work, the construction to complete a certain length of road
of a two-mile long shrimp culture each day. When I did not complete the
embankment. We were not given food or required work I would have to go to
water; they were expecting us to supply this. the authorities and compensate them
We dug a well to have easy access to water. for the work I did not finish, for
Beatings were commonplace during this example by giving 40 gallons of
work. Some beating resulted in serious kerosene. I had to walk 12 miles to do
injury such as broken arms and legs. No the forced labour. It took me one and
medical assistance was provided. After 26 an half hours and I had to run to get
days of working on the project I escaped there on time. If I didn’t reach the
and during the next two nights I made my work place on time I was beaten; I was
way back home; hiding during the day and beaten three or four times because of
walking at night. Some time after my return that. One time I was beaten so severely
NaSaKa caught up with me and forced me that I had to have an operation on my
to pay 200,000 kyats in compensation. To back. Every day I was beaten with a
pay for this I had to sell my livestock. stick when I was working on the road.

Rohingya refugee, Bangladesh Rohingya refugee, Bangladesh

Female refugee, age, Bangladesh

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IV. ENSLAVEMENT – FORCED LABOUR

A. Factual Findings

1. The Exaction of Forced Labour in Burma

The imposition of forced labour on the civilian population in Burma has been
documented for many years, and monitored closely by the International Labour
Organisation (ILO) for more than a decade. In 1996, following a complaint against
Burma lodged under the ILO Constitution,1 the organization established a Commission
of Inquiry to examine Burma’s observance of the 1930 Forced Labour Convention.2 That
inquiry led to the publication of a comprehensive report detailing the full extent of the
exaction of forced labour in the country. The report noted Burma’s ‘flagrant and
persistent failure to comply with the Convention’ and stated that:

[T]he obligation…to suppress the use of forced or compulsory labour is violated


in Myanmar in national law…as well as in actual practice in a widespread and
systematic manner, with total disregard for the human dignity, safety and health
and basic needs of the people of Myanmar. 3

The concluding observations of the Inquiry unequivocally highlighted the scale of the
exaction of forced labour in Burma, the human rights abuses committed and the almost
complete impunity of the perpetrators.4 These findings remain relevant today and
illustrate the fact that forced labour is a continuing reality in contemporary Burma.

Since the publication of the report of the Commission of Inquiry, the ILO has
been closely monitoring Burma’s observance of the 1930 Forced Labour Convention
and has sought to develop a number of mechanisms that may effectively address the
situation. In 2000, the ILO Governing Body adopted a resolution condemning the
ongoing systematic use of forced labour and the lack of an adequate follow-up to the
concluding observations of the Inquiry.5 Amongst other things, the resolution requested
that Burma’s conduct be discussed at dedicated sessions of the International Labour
Conference.6 These sessions have been held every year since then. The 2000 resolution
has had a significant impact and has resulted in the adoption of a number of
___________________________________________________________________________
1 Complaint of non-observance pursuant to article 26, Constitution of the International Labour
Organisation, available at http://www.ilo.org/public/english/bureau/leg/amend/constitution.pdf.
2 ILO Forced Labour Convention (No. 29) (1930), entered into force 1 May 1932, 29 UNTS 55 [hereinafter

Forced Labour Convention 1930].


3 ILO, ‘Report of the Commission of Inquiry appointed under article 26 of the Constitution of the

International Labour Organization to examine the observance by Myanmar of the Forced Labour
Convention, 1930 (No.29)’, GB.273/MYANMAR3 (1998) [hereinafter ILO Commission of Inquiry] at para.
536.
4 Ibid., at paras. 541-543.
5 ILO International Labour Conference, ‘Measures recommended by the Governing Body under article 33

of the Constitution – Implementation of recommendations contained in the report of the Commission of


Inquiry entitled Forced Labour in Myanmar (Burma)’, (2000), available at
http://www.ilo.org/public/english/standards/relm/ilc/ilc88/pr-4.htm#III, see especially III. B.
6 ILO International Labour Conference, ‘Resolution concerning the measures recommended by the

Governing Body under article 33 of the ILO Constitution on the subject of Myanmar’, (2000), available at
http://www.ilo.org/public/english/standards/relm/ilc/ilc88/resolutions.htm#I [hereafter ILO 2000
Resolution].

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encouraging initiatives by the SPDC, including ‘the issuance of orders prohibiting forced
labour; an end to large-scale imposition of forced labour on national infrastructure
projects; [and] the unprecedented visit of a ILO High-Level Team in 2001 to carry out an
objective assessment of the realities of forced labour’. 7 These developments were
followed in 2002 by an agreement between the SPDC and the ILO on the appointment of
a Liaison Officer in Rangoon.8

In 2004, there was a significant political shift in Burma and progress towards the
eradication of forced labour appeared to come to a halt. Three individuals were
sentenced to death for high treason for allegedly contacting the ILO about being
subjected to forced labour, a number of ILO interlocutors were removed from their
posts, and there were ‘death threats [issued] against the Liaison Officer, as well as…the
implementation of a policy to prosecute those involved in making “false allegations” of
forced labour’.9 This breakdown in cooperation was more generally accompanied by an
explicit denial of the forced labour problem and a return to a position comparable to the
period before the Commission of Inquiry. Responding to this diplomatic shift, the ILO
recommended that further action be taken with respect to the non-observance of the
Forced Labour Convention. The Governing Body demanded the establishment of a
formal complaint mechanism which would be capable of dealing with allegations of
forced labour, and examined the possibility of utilising other international mechanisms
to respond to this clearly endemic problem. From an early stage, the ILO Governing
Body assessed the possibility of recommending that the situation be referred to the
International Criminal Court (ICC), noting that ‘“crimes against humanity” appear most
relevant in relation to the exaction of forced or compulsory labour in Myanmar’. 10 The
ILO ‘made relevant documentation available to the Prosecutor of the [International
Criminal] Court.’11 The Governing Body also considered the idea of requesting an
advisory opinion from the International Court of Justice on a specific legal question
relevant to the exaction of forced labour in Burma12 but deferred this proposal

___________________________________________________________________________
7 ILO International Labour Conference, ‘Review of further action that could be taken by the ILO in
accordance with its Constitution in order to: (i) effectively secure Myanmar’s compliance with the
recommendations of the Commission of Inquiry; and (ii) ensure that no action is taken against
complainants or their representatives’, (2006), available at
http://www.ilo.org/public/english/standards/relm/ilc/ilc95/pdf/pr-2.pdf at para. 16.
8 ILO Governing Body, ‘Developments concerning the question of the observance by the Government of

Myanmar of the Forced Labour Convention, 1930 (No. 29)’, GB.283/5/3 (2002), available at
http://www.ilo.org/public/english/standards/relm/gb/docs/gb283/pdf/gb-5-3.pdf, Appendix.
9 ILO International Labour Conference, supra note 7 at para. 17. See also UN Human Right Council, ‘Report

of the Special Rapporteur on the Situation of Human Rights in Myanmar, Tomás Ojea Quintana’, UN Doc.
A/HRC/4/14 (2007) at para. 45.
10 ILO Governing Body, ‘Developments concerning the question of the observance by the Government of

Myanmar of the Forced Labour Convention, 1930 (No. 29)’, GB.297/8/2 (2006), available at
http://www.ilo.org/public/english/standards/relm/gb/docs/gb297/pdf/gb-8-2.pdf at para. 20.
11 ILO International Labour Conference, ‘Report of the Committee on the Application of Standards, Special

sitting to examine developments concerning the question of the observance by the Government of
Myanmar of the Forced Labour Convention, 1930 (No. 29) Part Three (Rev.)’, (2009), available at
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---
relconf/documents/meetingdocument/wcms_108330.pdf at 41.
12 ILO Governing Body, ‘Conclusions on item GB.297/8: Developments concerning the question of the

observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)’, available at
http://www.ilo.org/public/english/standards/relm/gb/docs/gb297/pdf/gb-8-conclusions.pdf. See also
ILO Governing Body, supra note 10.

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following an agreement with the SPDC on the establishment of a formal complaint


mechanism.13

For a trial period in 2007, the ILO established a forced labour complaint
mechanism, which was overseen by the ILO Officer in Rangoon.14 Following the renewal
of the Special Agreement between the ILO and the SPDC, the ILO officer in Rangoon will
continue to receive and assess complaints until February 2011.15 At present, the ILO
Governing Body continues to monitor the exaction of forced labour in Burma. The
Committee of Experts on the Application of Conventions and Recommendations on the
Observance of the Forced Labour Convention is examining the more specific question of
whether the SPDC is ‘issuing specific and concrete instructions to the civilian and
military authorities; ensuring that the prohibition of forced labour is given wide
publicity; providing for the budgeting of adequate means for the replacement of forced
or unpaid labour; and ensuring the enforcement of the prohibition of forced labour’. 16 In
terms of further progress towards eradication, ILO assessment and awareness missions
have been allowed in Burma in recent years and complaints of forced labour have been
lodged to the ILO office in Rangoon. The extent of public knowledge of the complaint
mechanisms, however, remains very limited and access to the ILO Liaison Office is
almost impossible for individuals not resident in Rangoon.17 Violations of the
prohibition of forced labour are also not punished under the Penal Code18 and continue
with almost complete impunity.19 At present, the ILO Committee of Experts ‘remains
unable to ascertain that clear instructions have been effectively conveyed to all civil
authorities and military units, and that bona fide effect has been given to the orders’.20
Finally, at the legislative level, the new Burmese Constitution includes a provision on
the prohibition of forced labour ‘which may be interpreted in such a way as to allow a
generalized exaction of forced labour from the population’.21

___________________________________________________________________________
13 ILO Governing Body, ‘Conclusions on item GB.298/5: Developments concerning the question of the
observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)’, available at
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---
relconf/documents/meetingdocument/wcms_091296.pdf.
14 ILO Governing Body, ‘Developments concerning the question of the observance by the Government of

Myanmar of the Forced Labour Convention, 1930 (No. 29)’, GB.298/5/1 (2007), available at
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---
relconf/documents/meetingdocument/wcms_gb_298_5_1_en.pdf. For information on the functionning of
the complaint mechanism see also GB.298/5/1(Add.2)(2007), available at
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---
relconf/documents/meetingdocument/wcms_gb_298_5_1_add2_en.pdf.
15 ILO, ‘An Agreement for Extension to the Supplementary Understanding (2009)’, available at

http://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---ilo-
yangon/documents/legaldocument/wcms_106133.pdf; ILO, ‘An Agreement for Extension to the
Supplementary Understanding (2010)’, available at http://www.ilo.org/wcmsp5/groups/public/---asia/-
--ro-bangkok/---ilo-yangon/documents/legaldocument/wcms_124530.pdf.
16 ILO International Labour Conference, supra note 11 at 41.
17 Ibid., at 15-16.
18 Penal Code, India Act XLV. 1860 (1 May 1861), available at http://www.blc-

burma.org/html/myanmar%20penal%20code/mpc.html.
19 ILO International Labour Conference, supra note 11 at 16.
20 Ibid., at 18.
21Ibid., at 19. Constitution of the Republic of the Union of Myanmar (2008), available at

http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/79572/85698/F1127243646/MMR79572.pdf, chap.
VIII, at art. 359 which reads: ‘The State prohibits any form of forced labour except hard labour as a

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2. The Exaction of Forced Labour in North Arakan State

As is the case throughout Burma, the pervasiveness of forced labour varies greatly
across the territory of North Arakan State and its exaction is often dependent on a
number of factors.22 For example, some forms of forced labour in Burma are seasonal
and others perennial. Additionally, demand for forced labour may differ according to
the requirements of the locality (such as the need for improved transportation
infrastructures) or following the wishes and impulses of regional commanders. In the
past, the political climate has had a significant impact on the exaction of forced labour.
For instance, it was reported that for a number of months in 2004 the exaction of forced
labour in North Arakan State decreased as a result of the temporary dismantlement of
the NaSaKa.23 Similarly in 2008, in the period preceding the constitutional referendum,
a decrease in the imposition of some forms of forced labour (and in human rights
abuses generally) was reported.24 It is also reported that the presence of international
organizations or scheduled visits of diplomats often result in a temporary alleviation of
the exaction of forced labour.

It is clear that there are a number of factors that contribute to the exaction of
forced labour in Burma. As explained by the Special Rapporteur on the Situation of
Human Rights in Myanmar, the existence of a military presence in an area has a clear
impact on forced labour and significantly increases the practice:

The military rely on local labour and other resources as the result of the
incapacity of the Government to deliver any form of support for their activities
(the self-reliance policy). The Special Rapporteur has received many allegations
of villagers being severely punished outside the framework of the law because
they refused to perform forced labour and of the unlawful appropriation of their
land, livestock, harvest and other property. While Myanmar has increased the
number of its battalions nationwide since 1988, the implementation of self-
reliance policies by the local military during the past decade has contributed to
undermining the rule of law and damaging the livelihoods of local
communities.25

Put simply, compelled or encouraged by the policy of self-sufficiency, forced labour is


exacted throughout Burma by the military as a means of providing sustenance to its
members. Generally, forced labour in Burma is more pervasive in border areas, in areas
inhabited by ethnic minorities, and in all regions with a heavy military presence.26

punishment for crime duly convicted and duties assigned thereupon by the State in accord with the law in
the interests of the people.’
22 Irish Centre for Human Rights, Bangladesh Fact-Finding Mission 2009, testimonies: F26-A-6; F26-A-7;

F26-A-8; F26-A-11; M26-B-3; M26-C-2; M26-B-4; M26-C-1; M26-C-2; F26-C-5; M26-C-7; M26-C-8; M27-A-
1; F27-A-1; F27-A-3; F27-A-6; F27-A-7; F27-A-8; M27-B-1; M27-B-2; M27-C-1; M27-C-2; M27-C-4; M27-C-
5; M28-A-3; F28-A-1; F1-A-2; F1-A-4; M1-B-2; M1-B-5; M-2-A-1; F2-A-1; F2-B-2; M2-B-3 (on file with
authors) [hereinafter Bangladesh testimonies].
23 C. Lewa, The Arakan Project, ‘Back to the Bad Old Days!: Renewed Exaction of Forced Labour in

Northern Arakan State, Burma’ (2005) (on file with authors).


24 C. Lewa, The Arakan Project, ‘No end to Forced Labour!: Forced Labour Practices in Northern Arakan

State, Burma’ (October 2006-May 2007) (on file with authors).


25 UN Human Rights Council supra note 9, at para. 48.
26 UN Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in

Myanmar, Paulo Sérgio Pinheiro’, UN Doc. A/HRC/7/18 (2008), at para. 33.

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The Rohingyas of North Arakan State suffer disproportionately from the exaction
of forced labour. There are many issues underlying such pervasiveness. Despite not
being recognized as such by the SPDC, the Rohingyas are an ethnic minority group. They
are also located on the Burma-Bangladesh border where there is a strong military
presence which creates a greater demand for forced labour. The establishment of the
NaSaKa and its presence in North Arakan State has placed an even greater burden on
the Rohingyas as the security forces have become the main users of forced labour. A
considerable number of “model villages” have also been built in North Arakan State and
the authorities have used Rohingyas, and no other group, to do the work in that region.
Discrimination against the Rohingyas is constant and ever-increasing in North Arakan
State, a situation resulting in increased forced labour. This situation was recognized by
Special Rapporteur on the Situation of Human Rights in Myanmar, who stated that:

In western Myanmar, the Muslim minority has long been discriminated against,
and is denied citizenship under the 1982 Citizenship Law. Muslim minority
asylum-seekers continue to flee to Bangladesh. They are subject to serious
abuses, especially forced labour (e.g. construction of roads, bridges, model
villages and military facilities, camp maintenance, portering) and arbitrary
taxation.27

As a result of these various factors, many akin to the situation in the rest of Burma, the
practice of forced labour in North Arakan has become one of the most pervasive in the
country, with the Rohingyas specifically targeted to provide labour.

2.1 The Nature of the Labour

Forced labour takes many forms in Burma. In his 2009 report to the Human Rights
Council, the Special Rapporteur on the Situation of Human Rights in Myanmar affirmed
that ‘[t]here have been numerous and frequent reports of civilians being forced to serve
as porters and guides for the military, to build and maintain roads, to construct military
camps and to work on infrastructure projects’.28 As will be examined in more detail in
this section, the Rohingyas of North Arakan State appear to be mainly forced into five
types of labour: portering; maintenance and construction work for the military, NaSaKa
and the police; cultivation and agriculture; construction and repairs of infrastructure;
and guard or sentry duty.

Portering

The findings of the field mission undertaken for the purposes of this Report give a sense
of the extent and nature of the portering activities that the Rohingyas are regularly
required to undertake. Typically, portering will involve carrying goods, supplies and
equipment for the military, NaSaKa and, albeit less frequently, for the police. 29 Porters

___________________________________________________________________________
27 UN Human Rights Council, supra note 9, at para. 59. See also UN Human Rights Council, ibid., at para. 78.
28 UN Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in
Myanmar, Tomás Ojea Quintana’, UN Doc. A/HRC/10/19 (2009), at para. 65. See generally on the practice
of forced labour in Burma, ILO Commission of Inquiry, supra note 3; National Coalition Government of the
Union of Burma, Burma Human Rights Yearbook 2007 (2008), available at
http://www.ncgub.net/BHRY/2007/, chap. 5.
29 Bangladesh testimonies, supra note 22: F26-A-6; F26-A-8; F26-A-11; M26-C-2; M27-A-1; F27-A-6; F27-

A-7; F27-A-8; F1-A-2; M1-B-2; M2-A-1; F2-B-2; M2-B-3. See generally on the issue of portering in Burma

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are usually forced to carry very heavy loads, ranging from 16 to 40 kilograms. 30
Civilians forced to porter are almost always exclusively male, with frequent reports of
boys as young as ten years old being engaged in portering duties.31 The length of time
Rohingyas are forced to work as porters varies greatly: from one day for some to
several months for others. At present, one man or boy in each household in North
Arakan State is forced to work as a porter for an average of one to two days per month.
The NaSaKa, the military, and the police do not consult one another before requesting
porters or other forced labour. This practice regularly leads to cases where individuals
are forced into portering for the different authorities, one after the other in a very short
period of time.32

The demand for portering (or “loading” as it is often referred to) depends on a
number of factors and will fluctuate on the basis of, amongst other things, the area, the
military activity, the individuals in command, the seasons, as well the political situation.
Improvements to the road infrastructure in North Arakan have altered the demand for
this type of forced labour in recent years. Currently, Rohingyas are recruited as porters
mainly when transportation is problematic, in places where the road system is not
developed or in areas rendered inaccessible because of the rainy or dry seasons. 33 The
use of porters is most prevalent in secluded and more isolated hill areas, and even more
so in border areas and in villages close to military facilities. Accordingly, in North
Arakan State it is the Rohingyas from North Maungdaw and North Buthidaung
townships who suffer most from this form of forced labour.34

The means used to gather porters and the average duration of labour appears to
have varied over recent years. As noted by the National Coalition Government of the
Union of Burma:

Whereas previously civilian porters were forced to work by a battalion for


several weeks on end, it is now more likely that a column of soldiers will pass
through a village and demand “emergency porters” to carry goods to the next
village where they will be released if other porters can be secured. SPDC soldiers
typically show up in a given village and demand porters to carry rations and
ammunition. Alternatively, they send order documents to the village head, who
must then take responsibility to arrange the stated number of labourers. 35

In the past, specific written orders for the recruitment of porters were issued and these
appear to have followed a rigid structure, passing through different chains of command
depending on the type of portering work required.36 Following this method of
recruitment, VPDC Chairmen received requests for porters and were almost always

and North Rakhine State, ILO Commission of Inquiry Myanmar, supra note 3, Part IV, chap. 12, at paras.
300-350.
30 NCGUB, supra note 28, at 189; ILO Commission of Inquiry Myanmar, ibid., Part IV, chap. 12, at para. 314.
31 Bangladesh testimonies, supra note 22: F26-A-6; F27-A-6.
32 ILO Commission of Inquiry Myanmar, supra note 3, Part IV, chap. 12, at para. 341.
33 National Coalition Government of the Union of Burma, Burma Human Rights Yearbook 2006, available at

http://www.ncgub.net/BHRY/2006/, at 28.
34 Lewa, The Arakan Project (2005), supra note 23; C. Lewa, The Arakan Project, ‘No end to Forced

Labour!: Forced Labour Practices in Northern Arakan State, Burma’ (October 2006-May 2007) (on file
with authors); Lewa, The Arakan Project (October 2006-May 2007), supra note 24.
35 See for instance, NCGUB, supra note 28, at 189.
36 ILO Commission of Inquiry Myanmar, supra note 3, at paras. 302, 304.

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responsible for gathering the specified number of villagers. At present, orders for the
recruitment of porters seem to be most frequently verbal, implemented with and
without the involvement of VPDC Chairmen. Villagers are regularly forced to comply
with these orders without prior arrangement. This parallel method of recruitment is
much less formal and often involves the members of NaSaKa, the military or the police
directly. These authorities simply recruit porters by taking (and effectively detaining)
villagers from the side of the road and in public places such as markets, or alternatively
by surrounding houses (sometimes in the middle of the night) and obliging men and
boys to accompany them for portering duties.

The working conditions of porters can be extremely difficult. As explained by the


ILO, the loads involved are:

[U]sually carried in woven cane or bamboo baskets, with straps across the
shoulders and an additional strap across the forehead. When excessive loads
were carried for prolonged periods, the straps of the basket and the basket itself
dug into the flesh of the shoulders and back, causing serious injuries and
sometimes exposing the bone. Injuries to the feet were also common.37

Rohingyas taken for portering are usually not informed of the duration of the labour.
Villagers taken from outside their house are often required to go with the authorities
immediately and are not given the chance to inform their families of the fact that they
are leaving for portering. Amongst the refugees and asylum seekers interviewed for this
Report, almost one in four have either been forced to be porters and/or have directly
witnessed this type of practice being enforced against Rohingyas of North Arakan State.
The tasks imposed upon these individuals have included pulling boats in places where
rivers were too shallow during the dry season, loading-work in the forest and the jungle,
soil levelling, carrying ammunition boxes, carrying whatever is requested during patrol,
as well as portering of water, food rations, rice, other goods, bags and belongings of
members of the NaSaKa and the military.38 Porters are also used for carrying material
such as bricks and miscellaneous supplies needed for other types of forced labour. 39

Construction and Repair of Infrastructure

The exaction of Rohingya forced labour for the construction and repair of
infrastructures shares many of the characteristics of portering examined in the previous
sub-section. Men and boys are randomly recruited for this work without notice and
often for an unspecified number of days. Demand for this type of labour and workload
will vary depending on the need for it in the region, the season, and the infrastructural
projects pursued by the authorities. Forced labour has, for instance, been utilized in
Burma for the construction of roads, bridges, railways, canals, schools and hotels. Since
2008, three types of construction appear to have specifically affected the Rohingyas in
North Arakan State: the repair of bridges, the repair and construction work on the road
between Buthidaung and Maungdaw, and the construction of model villages.40

___________________________________________________________________________
37 Ibid., para. 314.
38 Bangladesh testimonies, supra note 22: F26-A-6; F26-A-8; F26-A-11; M26-C-2; F26-C5; M27-A-1; F27A-
6; F27-A-7; F27-A-8; F1-A-2; M1-B-2; M2-A-1; F2-B-2; M2-B-3.
39 Lewa, The Arakan Project (2005), supra note 23.
40 Lewa, The Arakan Project (October 2006-May 2007), supra note 24.

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During the rainy season in 2008 the road between Buthidaung and Maungdaw
was damaged. Forced labour was exacted in order to repair this road and hundreds of
Rohingyas were forced to work over a period of one month. These workers included
children as young as ten years old. Individuals were forced to work on these repairs for
six to ten days at a time. The work included the removal of mud, followed by the
construction work for which Rohingyas had to collect and carry the material by hand.
Each worker was assigned a part of the road and was required to complete a certain
section every day. Workers who failed to complete the work allocated had to
compensate for the shortfall, for example by handing over forty gallons of kerosene. 41

Model villages are locally known as NaTaLa (translated this is the acronym for
the Ministry for Development of Border Areas and National Races) villages. Since 1990
over forty villages have been established, housing over ten thousand settlers. These
settlers are mainly Burman Buddhists. These villages were constructed in accordance
with the SPDC’s drive towards the transfer of individuals and families from urban to
border areas, with the supposed intention of diversifying and developing these remote
regions.42 The model villages’ programme is supervised by the Ministry for
Development of Border Areas and National Races and implemented by NaSaKa in North
Arakan State. The construction of model villages impacts on the Rohingyas in two ways:
(i) They necessitate the confiscation and reallocation of land and (ii) Their construction
involves the widespread exaction of forced labour. For example, recently an order was
issued for the creation of a model village to be located a few kilometres from the town of
Maungdaw. The construction of this NaTaLa village started in 2005 and was further
expanded at the beginning of 2008 to accommodate an additional one hundred families.
Between two and three hundred Rohingyas, from ten nearby villages, were forced to
level the soil, bake the bricks and undertake other tasks to build houses, a school and a
pagoda for this model village. 43

Maintenance and Building Work for the Military, NaSaKa and Police

The Rohingyas in North Arakan State are regularly forced to undertake maintenance
and building work for the NaSaKa, the military and sometimes also for the police. This
forced labour involves all types of work needed on a daily basis to maintain the camps
and barracks of the different authorities. Testimonies collected during the field
investigation suggest that males, including boys, are most affected by this practice.
While forced labour is much less prevalent amongst Rohingya women, some of them
have been and continue to be subjected to this type of forced labour, especially with
respect to cooking and cleaning tasks.44

The number of individuals exposed to this type of forced labour is generally


higher in areas where there is a more intensified military or NaSaKa presence. Some
commanders are known to demand that more workers be recruited in order to carry
out a wider range of tasks, frequently for their own personal profit. Unlike portering,
the amount of work exacted by NaSaKa, the military and the police for maintenance and
building generally does not depend on the season, on the political situation or
___________________________________________________________________________
41 Bangladesh testimonies, supra note 22: M26-B-4.
42 Document FL-08 (on file with authors).
43 Lewa, The Arakan Project (October 2006-May 2007), supra note 24; Document FL-08, ibid.
44 Bangladesh testimonies, supra note 22.

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remoteness of the region. Rather, civilians in North Arakan State are forced to work and
undertake these maintenance and building tasks on a year-round basis. Reports
gathered during the field investigation indicate that every camp and barracks in North
Arakan State is almost exclusively maintained and serviced through the use of daily
forced labour.45 Rohingyas are mainly recruited for this type of work by their VPDC
Chairmen. Following requests from the NaSaKa, military or police, VPDC Chairmen
designate a set number of labourers who will be provided to the given authority in each
village. Sometimes labourers are also recruited more spontaneously. One interviewee,
for instance, explained that he had been stopped at one specific outpost and forced to
refill the water supply and cut the grass for NaSaKa for half a day several times.46

Our fact-finding mission revealed that when engaged in this form of labour,
Rohingyas are compelled amongst other things to build, repair, paint and clean houses,
barracks, camps and outposts; maintain gardens, fetch water, wash clothes, cook, cut
bamboo, clear roads, bake bricks, collect firewood, and do other work such as repairing
and building fences for the NaSaKa, the military and the police. The construction work
typically involves such tasks as digging and levelling of soil. In addition to providing
labour, Rohingyas are regularly forced to provide the materials required for the repairs
and building work such as bamboo, wood and gravel. When they are unable to provide
the requested material, individuals are forced to provide financial compensation (or
compensation in labour) to the given authority.47 Recent reports assert that Rohingyas
located near Kyin Kan Pyin are forced to maintain a golf course near the NaSaKa
headquarters in that area. This work is said to require as much as 30 villagers per day.48

Guard or Sentry Duty Work

Rohingyas are forced to act as sentries or guards on a perennial basis in North Arakan
State. Most households in rural areas have to provide one individual for sentry duty one
to two nights a week and sometimes also during the day. Sentries are mainly sent to
guard posts at the entrance of their villages, particular roads, or NaSaKa camps. Sentries
are instructed to watch and report all movement from nightfall to morning. The
authorities claim that sentry duty is needed for the protection of villages. There has not,
however, been any active rebel group, criminal gang or insurgency activity for many
years in North Arakan State. Documentary research and testimonies suggest that sentry
duty is used as a means for extortion and harassment of the Rohingyas.49

Despite being physically less demanding, refugees and asylum seekers


interviewed explained that sentry duty is amongst the most dreaded type of forced
labour because it is commonly accompanied by extortion and physical abuse. Members
of the police and army regularly patrol and verify whether the sentries are awake
during their shift by silently approaching their posts. If the sentries do not react and

___________________________________________________________________________
45 Lewa, The Arakan Project (October 2006-May 2007), supra note 24.
46 Bangladesh testimonies, supra note 22: M2-A-1.
47 Ibid: M27-A-1; F27-A-1; M27-B-1; M27-C-2; M27-C-5; M2-A-1; M2-B-3.
48 C. Lewa, The Arakan Project, ‘Forced Labour in Full Swing!: Forced Labour Practices in Northern

Arakan State, Burma’ (May- August 2005) (on file with authors).
49 Ibid.; C. Lewa, The Arakan Project, ‘No Rest from Forced Labour!: Forced Labour Practices in Northern

Arakan State, Burma’ (December 2005-May 2006) (on file with authors); Lewa, The Arakan Project
(October 2006-May 2007), supra note 24; Bangladesh testimonies, supra note 22: F27-3; F2-B-2.

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immediately ask who is coming, they are accused of being asleep on duty and physically
punished, fined or compelled to provide several days of additional forced labour. If the
sentries react and ask who is approaching, they are blamed for not doing their work
properly and punished for not recognizing the authority on patrol. Sentry or guard work
is mainly carried out by men. Some women interviewed have, however, indicated that
they have been forced to do this work when their husbands or sons were absent or
unable to fulfil this duty.50

Forced Cultivation and Agricultural Labouring

Forced cultivation and agricultural labouring is commonly imposed on the Rohingyas in


North Arakan State. This type of forced labour takes place within the wider context of
the functioning of the agricultural sector in Burma. For several decades now, the SPDC,
through different legislation and decrees, has acquired ownership of the country’s land
with farmers only permitted to lease the land. As Hudson-Rod and Htay have noted:

The current regime in Burma pursues limited market economic reform


with no pretence of democratic political, social reforms. Control of land and
property has been central to state authority in Burma since independence and
many laws concerning property rights in land have been passed. There is lack of
ownership rights, no right to transfer and lease, buy and sell, or right to use land
for growing crops of one’s preference.51

Various legislative enactments and executive decrees dictate that land must be used
productively and be in line with SPDC policies. As a result, civilians are extremely
vulnerable to land confiscation if they do not exactly follow the regime’s instructions in
relation to cultivation or provision of crops. It is within this system that the exaction of
this type of forced labour takes place in Burma. Forced labour in this sector appears to
take three forms: civilians can be forced to cultivate the land of the army and of the
NaSaKa; they can be forced to give part (variable quotas) of their own harvest to the
authorities; and they can be compelled to use their land or part of their land to cultivate
specific crops as requested by the authorities. The exaction of this type of forced labour
is directly linked to executive policies, specifically the self-sufficiency policy and various
agriculture development schemes.52

Over the years, the SPDC has promoted several national development schemes
which have generated a significant amount of forced labour in Burma. These special
cultivation projects include the cultivation of various crops, such as rice, sunflowers,
jatropha (physic nuts), rubber, as well as shrimp farming. Amongst these, the cultivation
of physic nuts, rubber and the double cropping of rice have particularly affected the
Rohingyas in recent years. In 2005, Senior General Than Shwe launched a physic nut
development project aimed at developing and producing an alternative fuel source. He
announced that a number of States and Divisions would have ‘to put 500,000 acres
under the physic nut plants each within three years totalling seven million acres during

___________________________________________________________________________
50 Bangladesh testimonies, supra note 22: F27-3.
51 N. Hudson-Rodd and S. Htay, Arbitrary Confiscation of Farmers’ Land by the State Peace and
Development Council (SPDC) Military Regime in Burma (2008), available at
http://burmalibrary.org/docs4/Arbitrary_confiscation-ncgub.pdf at 80.
52 See Chapter VI (Deportation or Forcible Transfer of Population).

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the period [sic]’.53 As quoted in the New Light of Myanmar, Senior General Than Shwe
asserted that:

Farmer[s] will no longer need to buy diesel for their tractors and vehicles if they
grow such a profitable crop. So, physic nut plants should be grown on vacant
lands, and on the areas where no other crops thrive for environmental
conservation, raising the income of local people, and contributing towards
fulfilling [the] future fuel requirement…Now, thanks to the visionary [sic] of the
Head of State, farmers can enjoy fruitful results directly. I would therefore like to
exhort farmers to grow physic nut on a commercial scale for their brighter
future.54

In implementing this national development project, civilians were forced to prepare the
land, establish physic nuts nurseries,55 and ordered to plant physic nuts around their
houses, on roadsides and gardens, and/or on their farmland. In addition, the authorities
also regularly compelled individuals to purchase the plants or seeds, sometimes on
credit.

The Rohingyas have been more directly affected by the planting of jatropha since
2008 after orders for its large-scale cultivation were issued to Village Chairmen in North
Arakan State. Reports indicate that since the middle of 2008, the exaction of forced
labour to cultivate physic nuts has been increasingly affecting the whole of North
Arakan and that the practice is currently most prevalent in South Maungdaw.56 In
parallel with the physic nuts scheme, the promotion of the double cropping of rice also
appears to have adversely affected the Rohingyas and has fostered the exaction of
forced labour in North Arakan State. Traditionally, crops were grown once a year
outside the dry season; at present, the SPDC is promoting the cultivation of rice also in
the dry season to double the yearly production of rice. This policy of double-cropping of
rice, together with the self-sufficiency policy by which the army and NaSaKa must
provide their own food, contributes to the practice of forced labour and places an
enormous burden on the Rohingyas. In practice, the authorities are forcing Rohingyas to
cultivate the land of the army and the NaSaKa and/or are compelling villages to provide
rice quotas.

As with almost all types of forced labour in North Arakan State, forced cultivation
affects every Rohingya households. Male family members are the primary victims with
boys often sent to work instead of their fathers or grandfathers. Reports indicate that
every household has to provide one to two days of forced labour per week. Recruitment
for this type of forced labour runs through the Village Chairmen as is commonly the case
with the other forms of forced labour discussed. Simply put, forced labour in the
agricultural sector involves all the tasks associated with the cultivation of land:

Agricultural development schemes launched by the SPDC throughout the


country, including the summer paddy program have several elements:
development of irrigation systems such as dams and canals, introduction of high
___________________________________________________________________________
53 N. Tun Shein, ‘Physic nut oil, source of farmers’ income’, The New Light of Myanmar (15 January 2006),
available at http://burmalibrary.org/docs2/NLM2006-01-15.pdf at 6.
54 N. Tun Shein, ibid., at 7.
55 Lewa, The Arakan Project (December 2005-May 2006), supra note 49.
56 C. Lewa, The Arakan Project, ‘Update on Forced Labour Practices in North Arakan’ (May-August 2008)

(on file with authors).

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yielding hot-season rice strains, and use of new fertilizers, pesticides, and
machinery to cope with the technical complications of the new crop. These
tactics have created two new burdens for farmers. The first is the labour needed
to build roads, small dams, and irrigation ditches. State-directed,
uncompensated labour is common practice in Burma. Farmers who work on
these development projects have less time to tend their crops or other
subsistence activities. Secondly, the chemical ingredients of the summer rice
program are not distributed free to poor farmers, but are sold to them. Farmers
who do not buy the necessary materials cannot participate in the program; their
unproductive land, officially designated for double cropping, is reassigned to a
more able household…Farmers who could not meet the required quota had to
pay the market price in cash for the shortfall to the authorities. In some places
flood prevented cultivation. There were some areas where crops failed…the
three times they were cultivated. These cultivators not only wasted their efforts
and suffered losses but also because of their ability to fulfil their quota were
arrested by the hundreds. 57

In North Arakan State, as elsewhere in Burma, the harmful effects of forced labour and
policies implemented in the agricultural sector go beyond physical work; they also
impoverish the soil and have a long-term impact on the livelihood of civilians.

2.2 Forcible Nature of the Work and Treatment of Individuals

In the 1990s the Burmese regime was constantly stating that there was no exaction of
forced labour in Burma. In 1993, in response to the ILO Committee established to
examine Burma’s alleged non-observance of the 1930 Forced Labour Convention, the
regime asserted that:

The allegation [of the use of forced labour for the construction of railways, roads
and bridges] is false and is based on fabrications by people who wish to
denigrate the image of the Myanmar authorities and those persons who do not
understand the tradition and culture of the Myanmar people. In Myanmar,
voluntary contribution of labour to build shrines and religious temples, roads,
bridges and clearing of obstruction on pathways is a tradition which goes back
to thousands of years. It is a common belief that the contribution of labour is a
noble deed and that the merit attained from it contributes to a better personal
well-being and spiritual strength. …In Myanmar history, there has never been
"slave labour". Since the times of the Myanmar kings, many dams, irrigation
work, lakes, etc. were built with labour contributed by all the people from the
area. Accordingly, those who accuse the Myanmar authorities of using forced
labour patently reveal their ignorance of the Myanmar tradition and culture. 58

At present, Burma officially acknowledges that the practice of forced labour exists in the
country. The regime, however, still frequently qualifies some cases of forced labour as
voluntary work.

___________________________________________________________________________
57 N. Hudson-Rodd, M. Nyunt, S. Thamain Tun and S. Htay, ‘The Impact of the Confiscation of Land, Labor,
Capital Assets and Forced Relocation in Burma by the Military Regime’ (2003), available at
http://www.burmalibrary.org/docs/land_confiscation1-20.pdf at 12.
58 ILO Governing Body, ‘Report of the Committee set up to consider the representation made by the

International Confederation of Free Trade Unions under article 24 of the ILO Constitution alleging non-
observance by Myanmar of the Forced Labour Convention, 1930 (No. 29)’, GB.261/13/7 (1993), available
at http://www.ilo.org/ilolex/cgi-
lex/pdconv.pl?host=status01&textbase=iloeng&document=51&chapter=16&query=Myanmar%4
0ref&highlight=&querytype=bool&context=0 at paras. 20-21.

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Recently, The New Light of Myanmar published an article discussing briefly the
issue of forced labour in Burma. The article illustrated how the practice is still justified
as being voluntary work for the betterment of society:

Our country has a very long tradition that local people work together for
development of own wards and villages. In western countries also, if a road is
blocked by snow, each house removes the snow on the road in front of it with a
sense of duty. But some people, who are in no mood to repair the roads they will
take and say that such work is the concern of the government alone, are lodging
complaints, claiming the government is violating human rights. They say that is
forced labour. Well, if so, in their countries, young men are conscripted into
army whether they want to join army or not, when they come of age. Then, they
are sent to Iraq and Afghanistan for military purpose. None of them is willing to
be sent there, but they are sent under the law. If that is not human right
violation, and if the citizens are duty-bound to serve military duties at risk to
life, why don’t the people have responsibilities for giving voluntary service in
the interest of their wards and villages?[sic]59

The authorities regularly label the practice of forced labour as voluntary work or
service when recruiting workers. Rohingyas who are requested to undertake forced
labour are accordingly told that the work is of a voluntary nature and, under the threat
of reprisal, directly instructed to indicate to foreigners that they are volunteers working
of their own free will.

Clearly, the work discussed in the previous sections in North Arakan State is not
of a voluntary nature but rather forced or compulsory labour imposed upon the
Rohingyas. Rohingyas can avoid forced labour, but only if they are willing to provide so-
called “financial compensation”. Given the weekly demand for forced labour on every
household, avoiding forced labour is very costly but is often possible for those who can
afford to pay these bribes. According to one refugee who recently left Burma, avoiding
portering would be the most expensive and would cost 2,000 kyats per week.60 The cost
for avoiding forced labour is not fixed, and varies depending on the type of work and
oftentimes on the individuals collecting the money. Refusal to answer forced labour
requests is not an option without financial compensation and often leads to beatings,
killings and other abuses such as, for example, the retributive beating of a family
member. As recently reported to the General Assembly:

The Special Rapporteur has received allegations that villagers have been
severely punished because they refused to perform forced labour or have been
subject to unlawful appropriation of their land, livestock, harvest and other
property. 61

Needless to say Rohingyas are only very rarely compensated for the work they provide.
Of the refugees and asylum seekers interviewed during the field investigation, none had
been paid for their maintenance and building work or for the portering they were
forced to do. With respect to the construction of houses or barracks for the military,
payment is often promised but almost never provided.62 Over the course of the last
___________________________________________________________________________
59 M. De Doh, ‘Disease is curable with right medicine’, The New Light of Myanmar (28 July 2009), available
at http://www.burmalibrary.org/docs07/NLM2009-07-28.pdf at 8.
60 Bangladesh testimonies, supra note 22: F2-B-2.
61 UN Human Rights Council, supra note 26, at para. 60.
62 Bangladesh testimonies, supra note 22: M27-A-1.

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number of years, Rohingyas have on occasion been remunerated (below the prevailing
rate of pay) for construction work, including that carried out on model villages. Reports
indicate that payment occurs more commonly in areas visited by international
organisations.63 The conditions in which the Rohingyas are compelled to undertake
their tasks can be extremely difficult, with food, water and shelter usually not being
provided. Rather, individuals are expected to bring their own supplies, even when the
work extends over several days.64

Individuals are regularly mistreated while undertaking portering work. Porters


who slow down, ask for a break, or collapse from exhaustion, are routinely beaten.
Refugees and asylum seekers interviewed for this Report confirmed that they had
suffered mistreatment, including being beaten with sticks and gun butts, or being
kicked, and stabbed in the chest with a bayonet.65 Porters have also been killed and left
sick or unconscious on the side of the road when they could no longer perform their
work.66 Beatings seem to also regularly occur when Rohingyas are forced to do building
and maintenance work for NaSaKa, the military or police.67 Physical abuses of
Rohingyas are in actual fact frequent for all types of forced labour in North Arakan State.
In the agricultural sector, failure to provide forced labour more often than not leads to
the imposition of fines or the confiscation of land. In relation to guard or security duty,
several Rohingyas interviewed indicated that while on duty they are often (wrongfully)
accused of being asleep and are accordingly punished: the sentries are either beaten,
asked for a fine in cash or livestock, or they are compelled to compensate with several
extra days of forced labour.68 Women are particularly at risk when undertaking forced
labour, with rape and other forms of sexual violence being common.69

Taking into consideration the physical conditions, mistreatment, and the


cumulative effect of the practice, forced labour has severe repercussions. Documents
and the testimonies gathered by the Irish Centre for Human Rights show that Rohingyas
commonly come back sick from their work, especially when working as porters or
involved in construction of infrastructure. Some individuals never come back, having
been killed or because of death following injuries during forced labour. In addition to
the physical harm done to the Rohingyas during forced labour duties, this practice also
seriously affects their livelihoods. The combined requests for forced labour can lead to
single households being compelled to provide several days of forced labour per week.
For the poorer members of the population, weekly forced labour makes it impossible to
provide food and meet the basic needs of their families. Moreover, random recruitment
does not allow time to organize alternative arrangements to continue with daily work
and ensure the livelihood and safety of families. Finally, the conditions under which
forced labour is exacted, as well as the cumulative effects of the practice, severely affect
the mental health of many of the Rohingyas.

___________________________________________________________________________
63 Lewa, The Arakan Project (October 2006-May 2007), supra note 34.
64 For more details see ILO Commission of Inquiry Myanmar, supra note 3, at paras. 315-317 which
described these conditions.
65 Bangladesh testimonies, supra note 22: F-26-A-8; F-26-C-5; F1-A-2; M2-B-3.
66 Ibid: F26-A-8. See also NCGUB, supra note 28, at 189.
67 Bangladesh testimonies, ibid: M27-C-2; M27-C-5; M2-A-1; M2-B-3.
68 Bangladesh testimonies, ibid: F27-3; F2-B-2.
69 See Chapter V (Rape and Sexual Violence).

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B. The Applicable Law: Forced Labour as an International Crime Bearing


Individual Criminal Responsibility

With the factual findings on the exaction of forced labour in North Arakan State now
established, the task of the following section is to place these findings within the
appropriate international criminal framework. The origins of the prohibition of forced
labour are, perhaps unsurprisingly, entwined with the development of the absolute
prohibition of slavery and practices similar to slavery.70 Indeed, a fluid conception of
slavery and practices similar to slavery has proved be a fruitful instrument in the
context of the global anti-slavery movement.71 It is essential (in the context of the
Rohingyas) to ascertain the parameters of the definitions of slavery (and practices
similar to slavery and forced labour) in accordance with the Rome Statute’s jurisdiction
over the crimes of enslavement and sexual slavery.

1. Forced Labour as an International Crime Bearing Individual Criminal


Responsibility

International law instruments that prohibit forced labour act as valuable interpretative
aids when determining its outline as a potential international criminal act. Looking to
public international law first, it is clear from the provisions of the 1926 Slavery
Convention, the 1930 Forced Labour Convention and the 1950 Abolition of Forced
Labour Convention, that the exaction of forced labour (outside of the recognized
exceptions) is both a national and an international crime which may bear individual
criminal responsibility.72 These instruments acted as a backdrop for, and exerted some
influence on, the drafting of the crime against humanity provision on enslavement in
Article 7(1)(c) of the Rome Statute and are hence worth briefly considering.

Article 1(1) of the 1926 Slavery Convention states that, ‘[s]lavery is the status or
condition of a person over whom any or all of the powers attaching to the right of
ownership are exercised’.73 The central component of the definition of slavery is
therefore, the exercise of ‘any or all of the powers attaching to the right of ownership’.
What exactly constitute powers attaching to the right of ownership is regrettably not
made explicit. However, Jean Allain’s interpretation of the term is highly persuasive:

___________________________________________________________________________
70 See for example, K. Bales and P.T. Robbins, ‘ “No One Shall be Held in Slavery or Servitude”: A Critical
Analysis of International Slavery Agreements and Concepts of Slavery’, (2001) 2 Human Rights Review 18;
A. Yasmine Rassam, ‘Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and
the Slave Trade Under Customary International Law’, (1999) 39 Virgina Journal of International Law 303.
71 See A.T. Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to

James Hathaway’, (2009) 49 Virgina Journal of International Law 789 at 799; and S. Miers, Slavery in the
Twentieth Century: The Evolution of a Global Problem (Boston. Rowman & Littlefield Publishers, 2003) at
453.
72 Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention (1926), entered

into force 9 March 1927, 60 LNTS 253 [Slavery Convention 1926] at art. 5(3); Forced Labour Convention
1930, supra note 2 at art. 25; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery, (1956) entered into force 30 April 1957, 226 UNTS 3
[Supplementary Slavery Convention] at Preamble. For an examination of the criteria for the recognition of
conduct as an international crime see: M.C. Bassiouni, ‘The Penal Characteristics of Conventional
International Criminal Law’, (1983) 15 Case Western Reserve Journal of International Law 27.
73 Ibid., Slavery Convention 1926 at art. 1(1).

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[E]xercising the “powers attaching to the right of ownership” should be


understood as meaning that the enslavement of a person does not mean the
possession of a legal right of ownership over the individual (such a claim could
find no remedy in modern day law) but the powers attached to such rights but for
the fact that ownership is illegal. To use an analogy, the powers attached to the
right of ownership are the powers that manifest themselves say, when two drug
dealers have a dispute over a kilo of heroin. Neither can have their claim dealt
with in a court of law, but one or the other will exercise the powers attached to
the right of ownership, for example, possession; thus what would amount to a
right of ownership but for the fact that it is illegal to own, or possess, heroin. 74

However, it is not entirely clear whether forced labour is subsumed within this
definition. Some clarification is offered by Article 5 of the Slavery Convention which
states that:

The High Contracting Parties recognize that recourse to compulsory or forced


labour may have grave consequences and undertake, each in respect of the
territories placed under its sovereignty, jurisdiction, protection, suzerainty or
tutelage, to undertake all necessary measures to prevent compulsory or forced
labour from developing into conditions analogous to slavery. 75

The Convention was therefore concerned not with the outright prohibition of forced
labour as such, but rather with ensuring that situations in which forced labour takes
place do not degenerate into a slavery-like situation.76

The task of ‘progressively’77 putting an end to the exaction of forced labour was
assumed by the ILO and resulted in the almost immediate adoption in 1930 of the
Forced Labour Convention, to which, as was stated earlier, Burma is a State party. The
prevailing definition of forced labour is derived from Article 2(1): ‘[A]ll work or service
which is exacted from any person under the menace of any penalty and for which the
said person has not offered himself voluntarily’.78 The obligation to both desist and
positively act with respect to the eradication of the use of forced labour is tempered by
the permissible exceptions to its use. In this respect, the prohibition of recourse to
forced labour for public purposes is not absolute. Article 2(2) provides that forced or
compulsory labour may be exacted by public authorities in the context of: (i)
compulsory military service; (ii) work or services forming part of an individual’s normal
civil obligations; (iii) prison labour; (iv) work or services necessary in cases of

___________________________________________________________________________
74 J. Allain, ‘The Definition of “Slavery” in General International Law and the Crime of Enslavement within
the Rome Statute’, Paper presented at the Guest Lecture Series of the Office of the Prosecutor of the
International Criminal Court (26 April 2007), available at http://www.icc-
cpi.int/NR/rdonlyres/069658BB-FDBD-4EDD-8414-543ECB1FA9DC/0/ICCOTP20070426Allain_en.pdf
at 13. See also United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms of
Servitude, ‘Report of the Secretary-General’, UN Doc. E/2357 (1953) at 28, quoted in J. Allain, The Slavery
Conventions: The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United
Nations Convention (The Hague. Martinus Nijhoff Publishers, 2008) at 13.
75 Slavery Convention 1926, supra note 72 at art. 5, para. 1.
76 See M.C. Bassiouni, ‘Enslavement as an International Crime’, (1991) 23 New York University Journal of

International Law and Politics 445 at 468: ‘The implication of article 5 is that forced labour is not identical
in its invidiousness to slavery; the latter is completely unacceptable, while the former is merely
undesirable’.
77 Slavery Convention 1926, supra note 72 at art. 5, sub-para. 2.
78 Forced Labour Convention 1930, supra note 2 at art. 2(1).

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emergency; and (v) communal services of benefit to the community in question.79 The
exaction of forced labour in any circumstances falling outside of these specific
exceptions is expressly prohibited. To this end, states are required to ensure that all
laws or other statutory instruments instituting impermissible forced or compulsory
labour are repealed, and that subsequent legislation introduced ensure that forced or
compulsory labour is ‘punishable as a penal offence’ and that ‘the penalties imposed by
law are really adequate and are strictly enforced’.80As was noted in Section A above, the
SPDC have for many years attempted to brush off accusations of the widespread and
systematic exaction of forced labour by declaring that unpaid labour is offered on a
voluntary basis. It is clear that the forms and conditions of forced labour documented
above do not in any sense conform to the limited permissible exceptions under the 1930
Convention. The exaction of forced labour in North Arakan State, and throughout Burma
generally, has two dual roles: (i) To sustain, maintain and construct the infrastructure of
the central authorities and their agencies; and (ii) To expose ethnic minority groups to
extreme hardship and oppression. As such it is contrary to international law.

The relevant provisions of the 1926 and 1930 Conventions are significantly
supplemented by a number of universal and regional human rights instruments. The
natural starting point in this regard is Article 4 of the Universal Declaration of Human
Rights (UDHR) which provides that ‘[n]o one shall be held in slavery or servitude’ and
that ‘slavery and the slave trade shall be prohibited in all their forms’.81 However, it is
clear from the travaux préparatoires of the UDHR that Article 4 was implicitly intended
to cover such institutions and practices as ‘traffic in women, involuntary servitude and
forced labour’.82 Articles 8(1) and 8(2) of the 1966 International Covenant on Civil and
Political Rights (ICCPR), similarly prohibit slavery, the slave trade and servitude, 83 but
with the addition of a provision addressing forced labour. Article 8(3)(a) states that
‘[n]o one shall be required to perform forced or compulsory labour’84. Articles 8(3)(b)
and 8(3)(c)(i)-(iv) set out the permissible exceptions to the prohibition, which are
essentially a reiteration of those mentioned in Article 2(2) of the 1930 Forced Labour

___________________________________________________________________________
79 Ibid., at art. 2(2).
80 Ibid., at art. 25. This requirement is reinforced by article 5(3) of the Slavery Convention 1926 which
mandates that ‘the responsibility for any recourse to… forced labour shall rest with the competent central
authorities of the territory concerned’.
81 Universal Declaration of Human Rights, adopted 10 December 1948, GA Res. 217A, UN GAOR, UN Doc.

A/810 (1948) at art. 4 [emphasis added].


82 ‘Report of the Working Group on the Declaration of the Second Session of the Commission on Human

Rights’, UN Doc. E/CN.4/57 (1947) at 8 [emphasis added].


83 International Covenant on Civil and Political Rights, (1966), entered into force 23 March 1976, 999

UNTS 171 [hereinafter ICCPR] at arts. 8(1) and (2). While the Covenant does not offer a definition of
servitude Nowak states that, ‘[t]he travaux préparatoires show that an effort was made to limit the term
“slavery”, whereas the term “servitude” was to be applicable to all conceivable forms of dominance and
degradation of human beings by human beings’. M. Nowak, UN Covenant on Civil and Political Rights:
CCPR Commentary (Kehl. N.P. Engel Verlag, 2005) at 199.
84 Ibid., art. 8(3). Again the Covenant fails to advance a definition of forced or compulsory labour.

However, Nowak is of the opinion that, ‘[i]n light of the historical background, the relatively far-reaching
exceptions dictate that the expression “forced or compulsory labour” be understood broadly’. Nowak,
ibid., at 201-202. Article 8(3) is complemented by articles 6 (right to free choice of employment) and 7
(favourable conditions of work) of the International Covenant on Economic, Social and Cultural Rights
[International Covenant on Economic, Social and Cultural Rights, (1966) entered into force 3 January
1976, 993 UNTS 3].

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Convention.85 These provisions confirm that outside of the permissible exceptions, the
prohibition of forced labour is a norm of customary international law. The significance
of its designation as such is that states have an obligation to eradicate its use regardless
of whether or not they are parties to the instruments cited. This is especially important
in the present context, since, of the instruments discussed Burma is a party only to the
Slavery Convention 1926 and Forced Labour Convention 1930.

While it is beyond doubt that the prohibition of forced labour has a firm basis in
customary international law and international law treaties, the exact parameters of its
possible prosecution at the international level are in need of some clarification. Forced
labour as an international crime is most typically discussed alongside slavery and
slavery-related practices as either a war crime or a crime against humanity.86 In the
absence of an ongoing armed conflict in the North Arakan State this Report naturally
focuses on the crimes against humanity framework pertaining to the Rome Statute of
the International Criminal Court.

Article 7(1)(c) of the Rome Statute provides that:

For the purpose of this Statute, ‘crime against humanity’ means any of the
following acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack:…

(c) Enslavement87

Article 7(2)(c), elaborating on the definitional boundaries of the offence, states:

“Enslavement” means the exercise of any or all of the powers attaching to the
right of ownership over a person and includes the exercise of such power in the
course of trafficking in persons, in particular women and children. 88

This definition is clearly influenced by the definition found in Article 1(1) of the 1926
Slavery Convention. The Elements of Crimes document89 which act as an interpretative
aid to the Rome Statute give some indication of the potential scope of Article 7(1)(c)
stating:

1. The perpetrator exercised any or all of the powers attaching to the right of
ownership over one or more persons, such as by purchasing, selling, lending

___________________________________________________________________________
85 Largely identical wording is to be found in article 6 of the American Convention on Human Rights and
article 4 of the European Convention on Human Rights: American Convention on Human Rights, (1969),
entered into force 18 July 1978, 1144 UNTS 123 [hereinafter ACHR] at art. 6. Article 6(1) includes the
express prohibition of trafficking in women. Convention for the Protection of Human Rights and
Fundamental Freedoms, (1950), entered into force 3 September 1953, 213 UNTS 222 [hereinafter ECHR]
at art. 4.
86Bassiouni, supra note 76 at 448.
87 Rome Statute of the International Criminal Court (1998), UN Doc. A/CONF.183/9, entered into force 1

July 2002, 2187 UNTS 90, [hereinafter Rome Statute] at art. 7(1)(c).
88 Ibid., at art. 7(2)(c).
89 The Final Act of the Diplomatic Conference at Rome provided for the establishment of a Preparatory

Commission to oversee inter alia, the drafting of the Elements of Crimes and the Rules of Procedure and
Evidence, both of which were subsequently adopted by the Assembly of States Parties.

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or bartering such a person or persons, or by imposing on them a similar


deprivation of liberty.

2. The conduct was committed as part of a widespread or systematic attack


directed against a civilian population.

3. The perpetrator knew that the conduct was part of or intended the conduct
to be part of a widespread or systematic attack directed against a civilian
population.90

The understanding of powers attaching to the right of ownership in Element 1 above


appears quite restrictive, referring in large measure to traditional notions of chattel
slavery. However, it is particularly notable for the inclusion of the phrase ‘or by
imposing on them a similar deprivation of liberty’, which at first view is rather
ambiguous but for the clarification provided in an accompanying footnote which cites
inter alia the exaction of forced labour and imposition of servile status as examples of
such deprivation of liberty.91

The exaction of forced labour, therefore, may constitute a form of deprivation of


liberty associated with the exercise of any or all of the powers attaching to the right of
ownership. Thus, provided the general requirements for crimes against humanity as
outlined in Article 7(1) are satisfied (i.e. a widespread or systematic attack directed
against any civilian population),92 the exaction of forced labour alone – that is to say, in
the absence of the exercise of any of the other powers attaching to the right of
ownership – may constitute the crime against humanity of enslavement. This
interpretation appears to take into account the evolution of the definition of slavery
away from historical notions of chattel slavery towards situations of de facto slavery.
Christopher Hall has commented that ‘[g]iven the history of the struggle over more than
two centuries to abolish slavery, slavery-like practices and forced labour, it is logical to
assume that the drafters wished the Court to have jurisdiction over other slavery-like
practices such as serfdom and debt bondage, as well as related practices, such as forced
or compulsory labour, as crimes against humanity’.93 On a practical level, it is far from
certain that the bench of the International Criminal Court will view the issue in such a
clear-cut manner. The fact of the matter is that, as Darryl Robinson has said, Article
7(1)(c) is somewhat ‘convoluted and inelegant’.94

In determining the customary law content of the crime of enslavement under the
Rome Statute, the Court will have recourse to the not insignificant body of
jurisprudence which has evolved through the case-law of the International Military
Tribunal at Nuremberg (IMT), the International Military Tribunal for the Far East
___________________________________________________________________________
90 Elements of Crimes, Doc. ICC-ASP/1/3, at 6.
91 Bassiouni, supra note 76 at 6, footnote 11.
92 For a thorough examination of the general requirements for crimes against humanity, see Chapter III

(Legal Framework) at 28 ss.


93 C.K. Hall, ‘Article 7(1)(c) – Enslavement’, in O. Triffterer (ed.) Commentary on the Rome Statute of the

International Criminal Court: Obervers’ Notes, Article by Article (Baden-Baden. Nomos Verlagsgesellschaft,
1999) at 134. See also, W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute
(Oxford. Oxford University Press, 2010) at 160-163.
94 D. Robinson, ‘The Elements of Crimes against Humanity’, in R.S. Lee et al. (ed.), The International

Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Oxford. Oxford University Press,
2001) at 85.

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(“Tokyo Tribunal”), Control Council Law No. 10 (“Control Council cases”), and the
International Criminal Tribunal for the former Yugoslavia (“Yugoslav Tribunal”).

2. Forced Labour as Enslavement: Jurisprudence in Brief

Enslavement was originally acknowledged as a potential crime against humanity in


Article 6(c) of the Charter of the IMT (“the Charter”),95 with deportation to forced
labour being recognized as a war crime under Article 6(b).96 However, while the final
judgment of the IMT refers to enslavement and forced labour (or ‘slave labour’ as it was
labelled) in relation to thirteen defendants, it fails to distil a concrete definition of the
offence.97A number of the Control Council cases contained crimes against humanity
charges relating to enslavement and deportation to forced labour.98 The jurisprudence
reaffirms the IMT’s implied finding that the exaction of forced labour is a definite
indication of the crime of enslavement.99 However, the fact remains that these
judgments do not give a concrete account of the parameters or customary elements of
the crime of enslavement. Regrettably, the Judgment of the Tokyo Tribunal does not
provide any further enlightenment. In a similar vein to the IMT Charter, Article 5(c) of
the Charter of the Tokyo Tribunal provides for the crime against humanity of
enslavement,100 with a number of related charges included in the indictment.101
However, while convictions were handed down for specific instances of enslavement
and deportation to forced labour (most notably relating to the construction of the
Burma-Siam railway), no examination of the definitional boundaries of these offences
was forthcoming.

The Yugoslav Tribunal was required to fill in these definitional and elemental
blanks in the Kunarac and Krnojelac cases. While the Kunarac case was primarily
concerned with sexual slavery and related issues, both the Trial and Appeals Chambers
nevertheless have had reason to interpret the customary international legal parameters
___________________________________________________________________________
95 ‘Charter of the International Military Tribunal (IMT),’ in Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis (London Agreement), entered into force 8
August 1945, 82 UNTS 280 [Charter of the IMT] at art. 6(c).
96 Ibid., at art. 6(b).
97 International Military Tribunal (Nuremberg), Judgment and Sentences, (1 October 1946) reprinted in

41 American Journal of International Law 172 at 309-311. The result was that, with the exception of
Baldur Von Schirach (who was convicted on Count Four alone), it is not clear which defendants were
convicted of deportation to forced labour and which for enslavement. Von Schirach was convicted of
crimes against humanity for his role in both the exaction of forced labour from the Viennese Jewish
community, and in their deportation to concentration camps in Eastern Europe. This appears to imply
that the Tribunal considered that the exaction of forced labour may constitute the crime of enslavement
98 See: United States v. Krauch et al., US Military Tribunal sitting at Nuremberg, Judgment of 29 July 1948,

TWC VIII, 1081-210; United States v. Milch et al., US Military Tribunal sitting at Nuremberg, Judgment of
17 April 1947, TWC II, 773-878; United States v. Flick et al., US Military Tribunal sitting at Nuremberg,
Judgment of 22 December 1947, TWC VI, 1187-223.
99 United States v. Pohl et al., US Tribunal sitting at Nuremberg, Judgment of 3 November 1947, TWC V,

958-1163: ‘Slavery may exist even without torture. Slaves may be well fed, well clothed, and comfortably
housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful
restraint. We might eliminate all proof of ill-treatment, overlook the starvation, beatings and other
barbarous acts, but the admitted fact of slavery – compulsory uncompensated labour – would still remain’.
100 Charter of the International Military Tribunal for the Far East (26 April 1946), reprinted in N. Boister

& R. Cryer (eds.) Documents on the Tokyo International Military Tribunal: Charter, Indictment and
Judgments (Oxford. Oxford University Press, 2008) at 8.
101 Ibid., at 32-33. Counts 53-55.

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of enslavement. In doing so both the Trial and Appeals Chambers have had recourse to
the instruments and case-law referred to above, with the notable addition of the 1996
Draft Code of Crimes Against the Peace and Security of Mankind which stated that
enslavement was to be defined as:

[E]stablishing or maintaining over persons a status of slavery, servitude or


forced labour contrary to well-established and widely-recognized standards of
international law.102

Adducing the requisite physical (actus reus) and mental (mens rea) elements of
the offence, the Trial Chamber found that ‘the actus reus of the violation is the exercise
of any or all of the powers attaching to right of ownership over a person. The mens rea of
the violation consists in the intentional exercise of such powers’. 103 The Chamber went
on to say that:

This definition…may be broader than the traditional and sometimes apparently


distinct definitions of either: slavery, the slave trade and servitude or forced or
compulsory labour found in other areas of international law. This is evidenced
in particular by the various cases from the Second World War referred to above,
which have included forced or compulsory labour under enslavement as a crime
against humanity.104

This definition is certainly broader, but also enormously beneficial from the perspective
of the international criminal classification of forced labour. The Chamber clearly goes to
considerable lengths to eradicate any ambiguity surrounding the position of forced
labour within the enslavement framework. Forced labour is an indication of the
presence of the crime of enslavement. Other indications of enslavement identified by
the Trial Chamber include:

Elements of control and ownership; the restriction or control of an individual’s


autonomy, freedom of choice or freedom of movement; and, often, the accruing
of some gain to the perpetrator. The consent or free will of the victim is
absent…Further indications of enslavement include exploitation; the exaction of
forced or compulsory labour or service, often without remuneration and often,
though not necessarily, involving physical hardship; sex; prostitution; and human
trafficking.105 [Emphasis added]

As should be clear from the findings of Section A above, the majority of these indicators
from control of individual autonomy to exploitation, are identifiable in the situation of
the Rohingyas.

___________________________________________________________________________
102 Report of the International Law Commission on the work of its forty-eighth session, 6 May-25 July
1996, GA, Supplement No. 10 (A/51/10) at 93 [emphasis added]. Quoted in Prosecutor v. Kunarac et al.,
(Trial Judgment) IT-96-23-T & IT-96-23/1-T (22 February 2001) at para. 537 [emphasis added].
103 Ibid., Kunarac et al. Trial Judgment at para. 540 [emphasis added].
104 Ibid., at para. 541. The Kunarac definition was supported by the Trial Chamber of the Special Court for

Sierra Leone in its judgment on the RUF case – see, Prosecutor v. Sesay et al., (Trial Judgment) SCSL-04-15-
T (2 March 2009) at para. 160. The factual circumstances of the exaction of forced labour in this case have
some resonance [even if occurring in an armed conflict scenario] in the current context, see paras. 1215-
1218, 1220, 1223, 1321-1327, 1479 [forced farming]. See also, Prosectuor v. Sesay et al., (Appeal
Judgment) SCSL-04-15-A (26 October 2009) at para. 93.
105 Ibid., at para. 542. See also Sesay et al., ibid., at para. 199.

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The Kunarac trial judgment, while seminal,106 was not without its elemental
shortcomings. These were in large measure addressed by the Appeals Chamber in its
judgment on the case some 14 months later. For instance, the Trial Chamber’s reference
to the ‘right of ownership’107 was subject to scrutiny:

The Appeals Chamber will however observe that the law does not know of a
“right of ownership over a person”. Article 1(1) of the 1926 Slavery Convention
speaks more guardedly “of a person over whom any or all of the powers
attaching to the right ownership are exercised”. That language is to be
preferred.108

The Appeals Chamber endorsed the definition of the physical and mental elements of
the offence, and stated that the Trial Chamber’s definition was not too broad and was in
fact reflective of customary international law.109

That the exaction of forced labour fell within the definitional embrace of
enslavement was positively endorsed further in the Krnojelac case. In its judgment, the
Trial Chamber endorsed Kunarac’s finding that enslavement constituted a crime under
customary international law.110 The Chamber reiterated that forced labour, when
operating outside of the permissible exceptions under international humanitarian and
human rights law, is an established indicator of enslavement.111

The adoption of the Rome Statute in July 1998 predates by some three to four
years the Yugoslav Tribunal’s seminal enslavement judgments in Kunarac and Krnojelac,
so it is not surprising that in the absence of concrete judicial interpretation of the
offence, the drafters of Article 7(1)(c) and the accompanying Elements settled on a
‘convoluted and inelegant’ formulation.112 On the face of it, the position of forced labour
within the terms of Article 7(1)(c) rests on uncertain ground; however, the prevailing
jurisprudence clearly establishes that from a customary international law perspective,
forced labour is a definite component of the crime of enslavement. Furthermore, forced
labour, should the factual circumstances dictate, may be classified under other
inhumane acts, and should discriminatory intent be present may constitute persecution.

___________________________________________________________________________
106 Both Kunarac and Kovač were convicted of the crime against humanity of enslavement. In finding
Kovač guilty the Chamber stated that in detaining a number of Bosnian Muslim women in his apartment
in Foča, Kovač: ‘had complete control over their movements, privacy and labour. He made them cook for
him, serve him and do the household chores for him. He subjected them to degrading treatments,
including beatings and other humiliating treatments…For all practical purposes, he possessed them,
owned them and had complete control over their fate, and he treated them as his property.’ Ibid., at para.
780-781
107 Ibid., at para. 539.
108 Prosecutor v. Kunarac et al., (Appeal Judgment) IT-96-23-T & IT-96-23/1-T (12 June 2002) at para.

118.
109 Ibid., at para. 124.
110 Prosecutor v. Krnojelac, (Trial Judgment) IT-97-25-T (15 March 2002) at para. 353.
111 Ibid., at para. 359-360.
112 Robinson, supra note 94 at 85.

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C. Preliminary Conclusions

The analysis provided in this chapter follows in-depth documentary and field research
and strongly suggests that the crime of enslavement, as provided for in Article 7(1)(c) of
the Rome Statute, is currently being committed against the Rohingya population of
North Arakan State. The commission of the crime of enslavement is indicated by the
exaction of both widespread and systematic forced labour against the civilian Rohingya
population.

As shown in the preceding sections, forced labour is exacted from the Rohingya
population in several forms, including portering, building maintenance and
construction, forced cultivation and agricultural labour, construction and repair of basic
infrastructure, and guard or sentry duty. Individuals so engaged have the possibility of
buying their way out of these various forms of labour by providing weekly
compensation; it is not simply a case of merely rejecting forced labour requests. Failure
to provide the number of days of labour ordered for each household leads to
harassment, beatings, killings and other abuses such as the retributive abuse of family
members. Rohingyas in North Arakan State fulfil the various forced labour duties
requested under coercion and constant threat of reprisal and mistreatment. The labour
imposed on the Rohingyas in North Arakan State clearly falls under the definition of
‘forced or compulsory labour’ as provided for in Article 2(1) of the Forced Labour
Convention of 1930.113 For the majority of Rohingyas interviewed in Bangladesh, it
appears that before fleeing Burma, forced labour had become part of their daily life and
was accepted as a burden they could not change, avoid or alleviate.

As has been documented, Rohingya households are either requested by their


Village Chairmen to “volunteer” family members for compulsory labour, or alternatively
are recruited, without prior notice, in public places or at their place of residence,
sometimes in the middle of the night. The authorities responsible for overseeing forced
labour in North Arakan State have complete control over the movements of Rohingyas
when these are engaged in compulsory labour. The working environment is often harsh
and intimidating. It is common knowledge that to challenge the nature of the labour, to
refuse to comply or to rest due to exhaustion or injury will lead to physical abuse, the
imposition of fines or extra days of labour. The environment, coercion, and threat of
punishment are clear deterrents to escape or non-compliance and ensure complete
submission.

The examples of forced labour documented in this chapter do not represent


isolated cases thereof. Rather, documentary research and interviews conducted for the
purpose of this Report indicate that forced labour is widespread in North Arakan State.
The majority of refugees and asylum seekers interviewed had been either forced to
provide the type of labour discussed or had directly witnessed this type of practice
being enforced against other Rohingyas.114

___________________________________________________________________________
113 Forced Labour Convention 1930, supra note 2 at art. 2.
114 Bangladesh testimonies, supra note 22.

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Forced labour has been systematically exacted from the Rohingyas for at least
the last two decades.115 The SPDC’s self-sufficiency policy implemented for the army
and NaSaKa appears to have actively promoted or encouraged the practice of forced
labour. The implementation of different national development projects and the
launching of various construction projects without financial support from the SPDC
budget suggest that the regime either accepts or instigates forced labour on its territory.
These details point to the conclusion that the exaction of forced labour is, prima facie at
least, a specific policy of the SPDC. No genuine steps have been made towards the
eradication of forced labour. A recent ILO report highlighting Burma’s lack of
compliance with the prohibition of forced labour, states the following:

None of the recommendations of the Commission of Inquiry had yet been


implemented, and the exaction of forced labour continued to be widespread,
particularly by the army. Any instructions to cease the practice of utilizing
forced labour appeared to have been disregarded regularly and with
impunity.116

The SPDC appears to have clear knowledge of the practice as well as the extent of the
exaction of forced labour in Burma, yet it clearly accepts and fosters impunity. As noted
by the Special Rapporteur on the Situation of Human Rights in Myanmar:

Major obstacles to the elimination of forced labour include the apparent lack of
political will to seriously address the problem or to develop acceptable
alternatives, and the continued impunity of the Government officials and army
officers responsible. Another problem is the lack of public information on, and
awareness of, the Government’s orders, which prohibit the use of forced labour
and the mechanisms which exist to seek redress. 117

In the specific case of the Rohingyas, the restrictions imposed on their freedom of
movement means that this group does not have access to the ILO complaint mechanism
and de facto has no effective means of redress for the crime of enslavement committed
against them.

This analysis strongly indicates that the crime against humanity of enslavement
is currently being perpetrated against Rohingyas in North Arakan State. Further inquiry
should accordingly follow to prove the commission of these acts by individuals under
the framework of international criminal law, with a view to engaging individual criminal
responsibility.

___________________________________________________________________________
115 See generally ILO Commission of Inquiry Myanmar, supra note 3.
116 ILO International Labour Conference, supra note 11 at 35.
117 UN Human Rights Council, supra note 26 at para. 33.

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Chapter V:
Rape and Sexual Violence

“A man from NaSaKa came to my house. He kicked the door


and told me I had to go and work as a sentry instead of my
husband. I had to go immediately with my young child and
without food. Later in the evening while I was at my post
someone else from NaSaKa came. He told me ‘your husband
is not there, I will stay with you; I want to live with you’.
That night the man raped me in the shed in front of my boy.

We (women) feel at peace in Bangladesh. There is no food


and some problems, but there is no rape, we have peace”

Rohingya woman, 26 years-old, Bangladesh

Female refugee, age, Bangladesh

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V. RAPE AND SEXUAL VIOLENCE

A. Factual Findings

1. Rape and Sexual Violence in Burma

1.1 Reports of Rape and Sexual Violence against Women and Girls

The perpetration of rape and sexual violence against women and girls in Burma has
been documented for years by local organisations as well as the international
community. Since the 1990s several Special Rapporteurs have through their mandates
repeatedly noted that sexual violence is pervasive in Burma and that rapes are
committed throughout the country, including against Rohingya women and girls in
North Arakan State.1 Since 2002 the situation of women and girls in Burma has become
better known; the nature and gravity of sexual violence in the country have been laid
out by the Shan Human Rights Foundation and Shan Women's Action Network in a
publication named Licence to Rape.2 The two local organisations examined and provided
details on ‘173 incidents of rape and other forms of sexual violence, involving 625 girls
and women, committed by Burmese army troops in Shan State, mostly between 1996
and 2001.’3 The Licence to Rape report has been recognized by local and international
non-governmental organisations as well as by United Nations bodies as providing a
credible account of those cases, and an accurate analysis of the scourge of rape and
sexual violence in the Shan State. The report asserts that:

the Burmese military regime is allowing its troops systematically and on a


widespread scale to commit rape with impunity in order to terrorize and
subjugate the ethnic peoples of Shan State. The report illustrates there is a
strong case that war crimes and crimes against humanity, in the form of sexual
violence, have occurred and continue to occur in Shan State. 4

The report, which remains a key document on the issue, generated a great deal of
attention at the international level and seemingly started a local movement into the
examination of rapes and sexual violence crimes in the whole of Burma.

A number of reports written by Burmese organisations since 2002 have


examined the perpetration of rape and sexual violence against women and girls in Mon
State, Chin State, Karen State as well as against other ethnic minorities in the country. 5
___________________________________________________________________________
1 See for instance UN Commission on Human Rights, ‘Report on the Situation of Human Rights in
Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights, in
accordance with Commission Resolution 1992/58’, UN Doc. E/CN.4/1993/37 (1993) at paras. 77, 111,
137; Commission on Human Rights, ‘Report submitted by Mr. Angelo Vidal d’Almeida Ribeiro, Special
Rapporteur appointed in accordance with Commission on Human Rights Resolution 1986/20 of 10 March
1986’, UN Doc. E/CN.4/1993/62 (1993) at para. 45.
2 Shan Human Rights Foundation and Shan Women's Action Network, ‘Licence to Rape: The Burmese

Military Regime’s Use of Sexual Violence in the ongoing War in Shan State’ (2002), available at
http://www.shanwomen.org/pdf/Licence%20to%20Rape%20B.pdf.
3 Ibid., at 1.
4 Ibid.
5 Woman and Child Rights Project in collaboration with Human Rights Foundation of Monland, ‘Catwalk

to the Barracks: Conscription of Women for Sexual Slavery and other Practices of Sexual Violence by
Troops of the Burmese Military Regime in Mon areas’ (2005), available at

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These publications reported, amongst other things, the alleged perpetration by military
troops of the following: 125 cases of rape in Karen State between 1988-2004,6 37 cases
of rape in Mon State between 1995-2004,7 38 cases of rape in Chin State between 1989-
2006,8 26 cases of rapes across Burma between 2002-2004.9 As highlighted in a shadow
report regarding Burma’s latest periodic report to the Committee on the Elimination of
Discrimination against Women, together with the cases detailed in Licence to Rape, the
various studies presented by organisations in Burma have documented 399 cases of
rape in the country, some involving gang-rape, with a total of 875 girls and women
becoming victims of rape across Burma between 1988-2006.10 In parallel with the
material provided by these local organisations, the international organisation Refugees
International (RI) also examined the problem of sexual violence and rape in Burma, and
produced a report based on research and a field mission to the country. Refugees
International more specifically considered the situation of Karen, Karenni, Mon, Shan
and Tavoyan women and girls. The report noted that ‘RI sought to examine the extent of
the use of rape against a variety of Burma’s ethnic nationalities and determine if the
abuses were widespread and/or systematic.’11 Refugee International reported 43 cases
of rape or attempted rape against women and girls from the groups mentioned and
concluded that:

Widespread rape is committed with impunity, both by officers and lower


ranking soldiers. Officers committed the majority of rapes documented here in
which the rank of the perpetrator was known. The culture of impunity
contributes to the military atmosphere in which rape is permissible. 12

The reports by the various local organisations in different parts of Burma and by
Refugee International have provided vital information for future inquiries into the
situation of women and girls in the country. These documents detail the situation in
some specific areas of Burma, they identify perpetrators, the location of rapes, and the
crimes committed. The documents further indicate that rape and sexual violence are
widespread and that this scourge is especially endemic amongst ethnic minority groups.

http://www.burmalibrary.org/docs3/Catwalk_to_the_Barracks.htm; Karen Women's Organization,


‘Shattering Silences: Karen Women speak out about the Burmese Military Regime’s Use of Rape as a
Strategy of War in Karen State’ (2004), available at
http://www.womenofburma.org/Report/Shattering_Silences.pdf; Karen Women's Organization, ‘State of
Terror: The ongoing Rape, Murder, Torture and Forced Labour Suffered by Women Living under the
Burmese Military Regime in Karen State’ (2007), available at
http://www.karenwomen.org/Reports/state%20of%20terror%20report.pdf; Women’s League of
Chinland, ‘Unsafe State: State-sanctioned Sexual Violence against Chin Women in Burma’ (2007), available
at http://www.chinwomen.org/images/publications/documents/UnsafeState.pdf; Women’s League of
Burma, ‘System of Impunity: Nationwide Patterns of Sexual Violence by the Military Regime’s Army and
Authorities in Burma’ (2004), available at
http://www.womenofburma.org/Report/SYSTEM_OF_IMPUNITY.pdf; Women of Burma, ‘CEDAW
Shadow Report: In the Shadow of the Junta’ (2008), available at
http://www.womenofburma.org/Report/IntheShadow-Junta-CEDAW2008.pdf, at 51-66.
6 Karen Women's Organization, ‘Shattering Silences’, ibid.
7 Woman and Child Rights Project in collaboration with Human Rights Foundation of Monland, ‘Catwalk

to the Barracks’, supra note 5.


8 Women’s League of Chinland, ‘Unsafe State’, supra note 5.
9 Women’s League of Burma, ‘System of Impunity’, supra note 5 at 27-30.
10 Women of Burma, ‘CEDAW Shadow Report’, supra note 5 at 56.
11 Refugee International, ‘No Safe Place: Burma’s Army and the Rape of Ethnic Women’ (2003) available at

http://www.unhcr.org/refworld/docid/47a6eb9a0.html at 9.
12 Ibid.

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Since 2002, different bodies and representatives of the United Nations have
followed up on the alleged cases of rapes and sexual violence reported in the Licence to
Rape report, acknowledging the gravity of this problem in Burma. In 2002 the Special
Rapporteur on Violence against Women looked into the allegations of rape and sexual
violence in the Shan State; she met with the authors and researchers of the Licence to
Rape report and also personally conducted interviews with victims and witnesses of
rape and sexual crimes.13 The Special Rapporteur gathered testimonies of ‘16 rape
incidents, involving 25 women (19 Shan, 1 Akha, 1 Palaung and 4 Kayin women)... There
were eight cases in which a victim had been raped by more than one soldier.’14
Subsequently, United Nations special procedures have continued to pay particular
attention to the problem of women and girls as regard to sexual violence and rape in
Shan State as well as throughout Burma. In 2006, the UN Independent Expert on
Minority Issues together with several Special Rapporteurs (including the Special
Rapporteur on Torture and the Special Rapporteur on Violence against Women) jointly
‘sent an urgent appeal concerning widespread and systematic violence against women
and girls in Myanmar.’15 The joint urgent appeal to the Burmese government indicated
that:

According to information received, in all states in Myanmar, both in conflict


areas and in ceasefire areas, Government forces subject women and girls to
multiple forms of violence including abduction, forced marriage, rape, including
gang rape, mutilation, suffocation, scalding, murder, sexual slavery and other
forms of sexual violence. These acts are reportedly often committed by
commanding officers, or with their acquiescence. In many cases, women and
girls are subjected to violence by soldiers, especially sexual violence, as
‘punishment’ for allegedly supporting ethnic armed groups. Women and girls
are in these cases reported to have been detained and repeatedly raped by the
soldiers, sometimes leading to their death. 16

In addition to reiterating this urgent appeal made to Burma, the 2006 report of the
Special Rapporteur on Violence against Women discussed the cases of rape reported by
the Licence to Rape report as well as additional cases of alleged rapes and sexual
harassment perpetrated by army soldiers in barracks in the Mon State in 2004.17

In 2007, the Special Rapporteur on Torture, the Special Rapporteur on Violence


against Women, and the Chairperson-Rapporteur of the Working Group on Arbitrary
Detention lodged another urgent appeal to Burma.18 The urgent appeal addressed
specifically cases of the gang-rapes by army officers of four girls aged between 14 and
16.19 The urgent appeal further informed the Burmese government that:

___________________________________________________________________________
13 UN General Assembly, ‘Interim Report of the Special Rapporteur of the Commission on Human Rights
on the Situation of Human Rights in Myanmar’, UN Doc. A/58/219 (2003) at para. 41.
14 Ibid., at para. 58.
15 UN Commission on Human Rights, ‘Report of the Special Rapporteur on violence against Women, its

causes and consequences, Yakin Ertürk’, UN Doc. E/CN.4/2006/61/Add.1 (2006) at para. 118.
16 Ibid., at para. 118.
17 Ibid., at paras. 118, 120.
18 UN Human Rights Council, ‘Report of the Special Rapporteur on Violence against Women, its causes

and consequences, Yakin Ertürk , Addendum, Communications to and from Governments’ UN Doc.
A/HRC/7/6/Add.1 (2008) at paras. 287-294.
19 Ibid., at para. 287.

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Army officials gave money to the girls and their parents to persuade them not to
report their case to the police. However, in late February, the incident was
reported by an independent news agency. After the information was released,
the four girls were immediately arrested and are now detained at Putao Prison,
Kachin state.20

In her 2008 report the Special Rapporteur on Violence against Women indicates that
she:
regrets not having received any reply to her communications sent in 2007 and
reiterates her interest in receiving a reply from the Government in regard to all
allegations submitted, particularly given the alleged widespread sexual violence
and exploitation against women and girls. 21

The information provided by the Special Rapporteurs on Violence against Women and
on torture also mentioned that the ‘[m]ilitary forces continue to commit rape in several
regions, including Karen/Kayin, Mon, Shan and Chin’ 22 and reported cases of rape and
sexual violence in these regions.23 The Special Rapporteur on Torture also indicated
that ‘[t]he soldiers committing rape employ extreme violence, sometimes torturing and
murdering their victims.’24

In addition to the United Nations thematic Special Rapporteurs, the Special


Rapporteur on the Situation of Human Rights in Myanmar, the Secretary General, the
General Assembly, as well as the UN Committee on the Elimination of Discrimination
against Women, have specifically addressed the problem of rape and sexual violence in
Burma. At the end of 2008 the Committee on the Elimination of Discrimination against
Women provided their concluding observations on Burma’s combined second and third
periodic reports. Therein, the Committee acknowledged progress made by Burma to
create bodies where complaints of gender-based discrimination can be discussed25 and
also welcomed ‘the establishment and ongoing activities of several agencies and

___________________________________________________________________________
20 UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment, Manfred Nowak: Addendum, Summary of information, including
individual cases, transmitted to Governments and replies received UN Doc. A/HRC/7/3/Add.1 (2008) at
158. See also UN Human Rights Council, Report of the Special Rapporteur on Violence against Women
(2008), supra note 18, at paras. 287-289.
21 UN Human Rights Council, Report of the Special Rapporteur on Violence against Women (2008), supra

note 18 at 294.
22 UN Human Right Council, Report of the Special Rapporteur on Torture (2008), supra note 20 at para.

160; See also UN Human Rights Council, Report of the Special Rapporteur on Violence against Women
(2008), supra note 18 at para. 292.
23 UN Human Right Council, Report of the Special Rapporteur on Torture (2008), supra note 20 at para.

160; See also UN Human Rights Council, Report of the Special Rapporteur on Violence against Women
(2008), supra note 18, at para. 292. See also UN Human Right Council, ‘Report of the Special Rapporteur
on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak:
Addendum, Summary of information, including individual cases, transmitted to Governments and replies
received’, UN Doc. E/CN.4/2006/6/Add.1 (2006) at para. 166.
24 UN Human Right Council, Report of the Special Rapporteur on Torture (2008), supra note 20 at para.

160; See also UN Human Rights Council, Report of the Special Rapporteur on Violence against Women
(2008), supra note 18 at para. 292.
25 UN Committee on the Elimination of Discrimination against Women, ‘Concluding observations of the

Committee on the Elimination of Discrimination against Women - Myanmar’, UN Doc.


CEDAW/C/MMR/CO/3 (2008) at para. 14.

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organizations focused on women’s rights’.26 The members of the Committee, however,


ultimately stated the following in their Concluding Observations:
The Committee expresses its deep concern at the high prevalence of sexual and
other forms of violence, including rape, perpetrated by members of the armed
forces against rural ethnic women, including Shan, Mon, Karen, Palaung and
Chin women. The Committee is also concerned at the apparent impunity of the
perpetrators of such violence — although a few cases have been prosecuted —
and at reports of threats against and intimidation and punishment of the
victims. The Committee regrets the lack of information on mechanisms and
remedies available to victims of sexual violence as well as measures to bring
perpetrators to justice.27

The Special Rapporteur on the Situation of Human Rights in Myanmar acknowledged


the gravity of the problem referring to the ‘high number of allegations of sexual violence
against women and girls’.28 A few months before the review of Burma’s periodic report
by the Committee on the Elimination of Discrimination against Women took place, Mr.
Pinheiro noted that the Burmese Government ‘will benefit from the expertise of
Committee members in view of the widespread sexual violence against women and girls
reported in the country.’29

In its latest resolution on the situation of human rights in Burma the UN General
Assembly requested that the Burmese Government take urgent measures to halt human
rights violations, including ‘rape and other forms of sexual violence persistently carried
out by members of the armed forces, and the targeting of persons belonging to
particular ethnic groups’.30 The UN Secretary-General appeared to follow a similar line
of thought in a report following a Security Council Resolution on Women and Peace and
Security; therein he affirmed that:
In Myanmar, recent concern has been expressed at discrimination against the
minority Muslim population of Northern Rakhine State and their vulnerability to
sexual violence, as well as the high prevalence of sexual violence perpetrated
against rural women from the Shan, Mon, Karen, Palaung and Chin ethnic groups
by members of the armed forces and at the apparent impunity of the
perpetrators.31

In the last decade, reports from Burmese non-governmental organisations, international


non-governmental organisations as well as United Nations bodies and representatives
have provided a wide range of material and important resources on the situation of
women and girls in Burma. These various reports have led to a common view that rape
and sexual violence is an endemic problem in Burma, especially for ethnic minority
women and girls.
___________________________________________________________________________
26 Ibid., at para. 4. This includes the Myanmar National Committee for Women’s Affairs, the Myanmar
National Working Committee for Women’s Affairs and the Myanmar Women’s Affairs Federation.
27 Ibid., at para. 24.
28 UN Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in

Myanmar, Paulo Sérgio Pinheiro’, UN Doc. A/HRC/7/18 (2008) at para. 87.


29 Ibid., at para. 55.
30 UN General Assembly, ‘Situation of Human Rights in Myanmar’, UN Doc. A/RES/245 (2009) at para.

4(k).
31 UN Security Council, ‘Report of the Secretary-General pursuant to Security Council Resolution 1820

(2008)’, UN Doc. S/2009/362 at para. 15.

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1.2 Access to Justice and Responses to Cases of Rape and Sexual Violence

A familiarity with the issues of access to justice and the response of Burmese authorities
to complaints of rape and sexual violence is essential for an understanding of the
context in which these crimes are committed in Burma. Under international law and
following domestic legislation, the Burmese authorities have an obligation to investigate
violations such as rape, to prosecute alleged perpetrators, and to punish them if found
guilty. These steps are essential if the problem of sexual violence and rapes in Burma is
to be tackled effectively. At present, many obstacles exist for victims of sexual violence
who wish to access justice and successfully seek accountability for these crimes in
Burma. These interconnected obstacles include the failure of authorities to effectively
investigate cases, the failure to prosecute and punish perpetrators, and the failure of
women and witnesses to formally report violations.

One of the obstacles to accountability in cases of rape and sexual assault in


Burma is the victims’ reluctance to complain and officially report the crimes. This
obstacle is quite common in cases of rapes and sexual crimes. This is understandable if
one takes into consideration the nature of the crime and the stigma attached to it,
especially in a traditional society such as Burma. Women in Burma, especially ethnic
minority women and girls including the Rohingyas, are unwilling, discouraged, or
prevented from seeking redress. As noted by Refugees International:
The military’s use of rape to control both eastern and western Burma has been
documented for at least fifty years. Despite the longevity of this brutal practice,
talk about rape has never been acceptable. Such discussion among Burma’s
ethnic women is considered taboo and is usually conducted in hushed tones and
with lowered heads. For women to acknowledge that they have been raped is to
declare openly that they are “unclean,” and to face possible discrimination at the
hands of their family and community members who hold them responsible. For
men to acknowledge it is to admit they have been unable to protect their wives,
mothers and daughters. For communities to discuss it is to confront the pain,
shame, and impotence of people under siege by their own country’s army. 32

Given that the reporting of violations can be considered to be a source of shame


for the women and their families and is furthermore likely to jeopardise their future
possibility to lead a normal life in society, they often choose not to report. As noted by
the Secretary-General, this is particularly problematic for the well-being of women who
have been victims of rape and sexual violence:
This is contributing to double victimization, first for having been sexually
violated and second for having to bear the fear, shame and stigma that
surrounds sexual violence, and to a culture of silence that essentially impedes
victims’ access to justice and remedy, and allows impunity to persist. 33

In Burma, including in North Arakan State, authorities regularly fail to effectively


investigate alleged cases of rape. Some cases collapse due to outright decisions not to
investigate them. On the other hand, investigations are rendered ineffective as a result
of insufficient inquiry, inadequate gathering of information or evidence by officials. This
___________________________________________________________________________
32Refugees International, No Safe Place, supra note 11 at 22.
33UN Security Council, Report of the Secretary-General pursuant to Resolution 1820, supra note 31 at
para. 19.

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necessarily leads to an inability to obtain redress for violations. As noted by the UN


Secretary-General, in Burma ‘the effective administration of justice is hampered not
only by a lack of capacity, but also by the fact that some justice officials do not give
serious consideration to reports of sexual violence.’34 In reply to complaints of rape and
sexual violence the authorities will reportedly either dismiss testimonies on the basis
that they are false or fabricated; indicate that they cannot find the perpetrator (or
perpetrators); or more generally just not actively search to find missing information
that could lead to charges and accountability. This failure to investigate has been
documented, for instance, in relation to the alleged cases of rape reported in Licence to
rape.35 In response to two cases it was reported that ‘the officer accused was […]
immediately transferred to another unit.’36 Regarding a further eleven cases the report
indicated that ‘the SPDC officers registered the complaint, but did nothing further. In
nine cases, the SPDC officers arranged for a "line-up" of as many as 80 soldiers in order
for the victim to identify the rapist, but deliberately left the rapist out of the line.’37

In addition to these problems of access to justice and of obtaining a thorough


investigation, victims, their families, and witnesses of rape and sexual violence, have
reported being threatened, intimidated and physically abused because of their
allegations. Victims and witnesses have also faced charges for attempting to denounce
these violations. In the course of the interviews conducted with Rohingya refugees and
asylum seekers one individual recounted that a man was imprisoned for informing the
authorities of the rape of his cousin,38 and another refugee stated that people
deliberately remain silent about rapes occurring in North Arakan State because
individuals who complain would be sentenced to 13 years in prison. 39 In Shan State, it
has been reported that:
Following the lack of positive identification, in one case the headman who had
made the complaint was beaten unconscious and detained until the family of the
rape victim paid 2,000 kyat for his release. In two other cases, the victim herself
was imprisoned and up to 20,000 kyat had to be paid for her release. In another
case the headman and his deputy were imprisoned until 5,500 kyat could be
paid for their release. In three other cases, the complainants were not
imprisoned but had to pay fines of up to 30,000 kyat for defaming the military. 40

Retaliation for attempts by individuals to bring charges of rape is reported to be


frequent. Responses to complaints appear to escalate from threats to intimidation, fines,
imprisonment, beatings and killings. The Special Rapporteur on Violence against
Women summed up the situation by stating that:

___________________________________________________________________________
34 Ibid., at para. 23.
35 For information on the position of the SPDC on the investigation of these cases, see UN Committee on
the Elimination of Discrimination against Women, ‘Combined second and third periodic reports of States
parties, Myanmar’, UN Doc. CEDAW/C/MMR/3 (2007) at para. 59.
36 Shan Human Rights Foundation and Shan Women's Action Network, ‘Licence to Rape’, supra note 2 at

13.
37 Shan Human Rights Foundation and Shan Women's Action Network, ibid.
38 Irish Centre for Human Rights, Bangladesh Fact-finding Mission 2009, testimony M26-C-7 (on file with

authors) [thereafter Bangladesh testimonies].


39 Ibid., testimony M1-B-2.
40 Shan Human Rights Foundation and Shan Women's Action Network, ‘Licence to Rape’, supra note 2 at

13.

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In most cases, especially when the perpetrators are Government officials,


victims do not lodge complaints to the authorities on any acts of violence
committed against them, for fear of retaliation by the perpetrators. In many
instances, those that do complain are invariably instructed to accept meagre
compensation under the threat that if they do not retract their complaint, they
would be subjected to more violence. Alternatively, they are arbitrarily arrested
and detained until they withdraw their complaints. Sometimes the families of
the victim are threatened as a means of exerting pressure on the victim. On one
occasion, a community leader who reported a rape of one of his villagers was
beaten and tortured to death by the military. It is also reported that medical
personnel who treat a rape victim are reluctant to take any action with the
authorities out of fear of possible reprisals against them. As a result of this,
victims are entirely discouraged from making complaints; investigations are as a
result rarely initiated and perpetrators are seldom brought to justice. The
existence of such as widespread culture of impunity exacerbates the magnitude
of violence against women and girls in Myanmar. 41

The fear of retaliation for seeking redress, combined with the failure of and lack of trust
in the justice process, commonly protects perpetrators of rape and sexual violence and
leads to impunity. In turn, this reality fosters the idea that for some, the commission of
rape and sexual assault is acceptable. As put forward by the Special Rapporteur on the
Situation of Human Rights in Myanmar: ‘The failure to investigate, prosecute and punish
those responsible for rape and sexual violence has contributed to an environment
conducive to the perpetuation of those acts against women and girls in Myanmar.’42

2. Rape and Sexual Violence in North Arakan State

To this day, no study on rape and sexual violence equivalent to those already referred to
regarding some regions in Burma has been published in relation to the Rohingya
women and girls of North Arakan State. An explanation for this can be found in the same
reasons why there has been comparatively very little material published on the general
human rights situation of the Rohingyas in Burma. These reasons include the
geographical remoteness of North Arakan State, as well as the fact that the Burmese
authorities have blocked access to North Arakan State and deny permission to most
foreigners to visit that area. In addition to this, international non-governmental
organisations and UN bodies which have field presence in North Arakan State have been
under the constant scrutiny of the Burmese authorities for years. These institutions
have little or no possibility of publicly discussing the on-going human rights violations
or international crimes as to do so could jeopardise their work in North Arakan and
indeed in the entire country. The situation for local organisations is similar, with the
additional danger that publication of controversial material, such as information dealing
with the perpetration of rapes by army officers, could put the lives of employees at risk.
Despite these obstacles and the difficulties inherent in examining this sensitive topic,
sufficient material has been gathered through open-source research, confidential
___________________________________________________________________________
41 UN Commission on Human Rights, Report of the Special Rapporteur on Violence against Women
(2006), supra note 15 at para. 123. See also UN Human Right Council, Report of the Special Rapporteur
on Torture (2006), supra note 23 para. 166.
42 UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights in

Myanmar(2008), supra note 28 at para. 87. See also UN General Assembly, ‘Report of the Special
Rapporteur on the Situation of Human Rights in Myanmar’, UN Doc. A/61/369 (2006) at para. 30; UN
Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in Myanmar,
Paulo Sérgio Pinheiro’, UN Doc. A/HRC/4/14 (2007), at para. 41.

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meetings and interviews conducted with Rohingya refugees and asylum seekers in
Bangladesh, to support allegations of rape and sexual violence in North Arakan State.
The present section examines this material. It analyses some of the apparent causes
behind the perpetration of rape and sexual violence in North Arakan State, as well as the
factors which exacerbate this situation and it also provides individual accounts of rape
and sexual violence against Rohingya women and girls.

2.1 Root Causes of Rape and Sexual Violence against Rohingya Girls and Women

Some of the apparent causes leading to the perpetration of rape and sexual violence in
North Arakan State are analogous to the reasons behind the commission of these crimes
in the rest of Burma, and are, in many ways, similar to the situation of women and girls
in other countries, especially in conflict and post-conflict states or countries led by a
military junta. Gender-based discrimination, group-based discrimination and the
militarisation of Burma appear to be three contributing factors to the scourge of sexual
violence and the numbers of alleged rapes in North Arakan State.

Burma is a male-dominated society where women and girls hold traditional roles
and generally do not enjoy equal status with men. Illustrating this, the Committee on the
Elimination of Discrimination against Women indicated in its concluding observations
that:

[T]he Committee is concerned about the persistence of adverse cultural norms,


practices and traditions as well as patriarchal attitudes and deep-rooted
stereotypes regarding the roles, responsibilities and identities of women and
men in all spheres of life, especially within some ethnic groups. The Committee
is concerned that such customs and practices perpetuate discrimination against
women and girls, as reflected in their disadvantageous and unequal status in
many areas, including in public life and decision-making and in marriage and
family relations, and the persistence of violence against women […].43

The link and interconnectedness, in some societies, between the status of women,
discrimination against women or gender-based discrimination,44 and the existence of
sexual violence, including the perpetration of rape, has long been discussed. The UN
Secretary-General, for instance, acknowledged this link by affirming that ‘[i]n many
countries around the world, sexual violence continues to be deeply entrenched in
inequalities and discrimination against women, and patriarchal structures.’45

___________________________________________________________________________
43 UN CEDAW, Concluding Observations (2008), supra note 25 at para. 20. See also para. 44. For more
details on the situation of women in Burma, see National Coalition Government of the Union of Burma,
Burma Human Rights Yearbook 2008, available at
http://www.ncgub.net/NCGUB/mediagallery/downloadc516.pdf?mid=20091123192152709 at Chapter
17.0
44 Convention on the Elimination of All Forms of Discrimination against Women, GA Res. 34/180, 34 UN

GAOR Supp. (No. 46) at 193, UN Doc. A/34/46, art. 1 defines discrimination against women as “any
distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing
or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a
basis of equality of men and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.”
45 UN Security Council, Report of the Secretary-General pursuant to Resolution 1820, supra note 31 at

para. 19.

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This reality is all the more true for North Arakan State where it has been
acknowledged that ‘women and girls are particularly vulnerable and marginalized.’ 46
Rohingya society is a very conservative and traditional society where a female is
expected to get married at a very young age, have many children and raise them, cook,
clean, take care of her husband, and be subservient. The combination of State and
society restrictions led the Committee on the Elimination of Discrimination against
Women to state the following:
The Committee expresses its deep concern at reports that Muslim women and
girls in northern Rakhine State endure multiple restrictions and forms of
discrimination which have an impact on all aspects of their lives, including
severe restrictions on their freedom of movement; restricted access to medical
care, food and adequate housing; forced labour; and restrictions on marriages
and pregnancies. The Committee is also concerned that the population in
northern Rakhine State, in addition to being subject to policies imposed by the
authorities, maintains highly conservative traditions and a restrictive
interpretation of religious norms, which contribute to the suppression of
women’s and girls’ rights.47

The traditional role of Rohingya women and girls, the fact that they rarely hold public
positions in their society and cannot freely exercise their rights, make them vulnerable
to gender-based discrimination which regularly leads to sexual violence and rape. For
all these reasons, discrimination of women in Burma and in North Arakan in particular
appears to be one of the root causes of rape and sexual violence.

As in the case of forced labour, the military presence has a great impact in North
Arakan State and appears to be one of the causes of the prevalence of rape and sexual
violence. Generally, it is well-known that militarisation and military presence in a
country can have a significant impact on women. The Special Rapporteur on Violence
against Women explains that ‘militarist cultures often reinforce dominant cultural
paradigms that discriminate against women.’48 In addition to militarization reinforcing
the discriminatory culture against women, research in many countries has shown that
especially in conflict and post-conflict countries, there exists a strong correlation
between the number of troops and an increase in rape and sexual violence. The
situation in North Arakan is no different. In actual fact, as will be explored in more detail
in the next section, members of the armed forces and NaSaKa appear to be the main
perpetrators of rape and sexual violence in North Arakan State. The Women’s League of
Burma stated in their Shadow Report to the Committee on the Elimination of
Discrimination against Women that:
[S]ystematic militarization and prioritization of military expenditure, including
capacity-building of military personnel, has reinforced the existing patriarchal
system. Today, the military presence pervades every village, town and city, and
every branch and level of the governing infrastructure. […]

We, women of Burma, therefore reiterate that there can be no advancement of


the lives of women and girls in Burma, and no protection and promotion of their
rights while the military and its proxy organizations remain in power. There is
___________________________________________________________________________
46 UN CEDAW, Concluding Observations (2008), supra note 25 at para. 22.
47 Ibid., at paras. 42-43.
48 UN Human Rights Council, ‘Report of the Special Rapporteur on Violence against Women, its causes

and consequences, Yakin Ertürk’, UN Doc. A/HRC/4/34 (2007) at 63.

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an urgent need for genuine political change, to put an end to the militarized
culture inside Burma. 49

Clearly, the continuous increasing militarisation of North Arakan State and the presence
of NaSaKa makes Rohingya women especially vulnerable to rape and sexual violence
and is one of the root causes for the persistence of this plight.

Finally, in addition to gender-based discrimination and the militarisation of


North Arakan State, the perpetration of crimes of sexual violence and rape against
Rohingya girls and women appears to be most frequently linked to racial
discrimination.50 Discrimination against the Rohingyas, which in many cases leads to
their persecution (as discussed further in chapter VII), takes many forms in North
Arakan. The Special Rapporteur on the Situation of Human Rights in Myanmar explains
that:
[I]n the Northern Rakhine State (Arakan), the Sunni Muslim returnees are
subjected to political, economic, religious and social repression by the
Authorities. […] They are subject to systematic discrimination and abuse, which,
according to various sources, have worsened, especially with regard to the
restriction of movement, arbitrary taxation, forced labour, confiscation, forced
eviction and arbitrary arrest (including harassment and violence by police
forces, death in custody and sexual violence). In addition, people are often
harassed (house searches, confiscation of assets) or beaten by police forces,
mainly during controls or at checkpoints. Cases of rape of young women and
children, perpetrated by different police forces, have been reported.51

Discrimination directed against the Rohingyas has many facets, and racial
discrimination in that region appears, in some cases, to result ultimately in sexual
violence and rapes. Implying that discrimination can lead to sexual violence, the
Secretary-General indicated that: ‘recent concern has been expressed at discrimination
against the minority Muslim population of North Arakan State and their vulnerability to
sexual violence…’52 While this alone does not indicate that a State policy promoting
repression of Rohingya women through rape and sexual assault exists, it is clear that the
discrimination against the Rohingyas and the repression of the group by the authorities
creates an atmosphere where abuse of the Rohingyas appears acceptable. In turn,
discrimination against the Rohingyas is clearly a root cause or factor contributing to the
scourge of rape and sexual violence against Rohingya women.

As with the exaction of forced labour (discussed above), the infliction of rape and
sexual violence on women and the gravity of these acts are exacerbated by the fact that
North Arakan State is a poor area with heavy militarisation and NaSaKa presence. This
___________________________________________________________________________
49 Women of Burma, CEDAW Shadow Report, supra note 5 at 82.
50 International Convention on the Elimination of All Forms of Racial Discrimination, GA Res. 2106 (XX),
Annex, 20 UN GAOR Supp. (No. 14) at 47, UN Doc. A/6014 (1966), 660 UNTS 195, art. 1 defines racial
discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life.”
51 UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights in

Myanmar(2008), supra note 28 at para. 78.


52 UN Security Council, Report of the Secretary-General pursuant to Resolution 1820, supra note 31 at

para. 15.

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is further compounded by the fact that Rohingya females are especially vulnerable due
to severe discrimination based on their low status in society, and even more so because
they belong to an ethnic group that suffers from racism and persecution as well as being
de facto stateless. These elements, together with the fact that victims are almost
invariably unable to seek redress, produce and foster optimal conditions for the
perpetration of sexual crimes and result in many victims of rape and sexual violence in
North Arakan State.

2.2 Reports of Rape and Sexual Violence against Rohingya Girls and Women

On the basis of the research, confidential meetings and refugee interviews53 conducted
in the preparation of this Report, the situation of Rohingya women and girls in North
Arakan State with regard to the infliction of rape and sexual violence appears to have
similarities to that of other ethnic minority women and girls in Burma. The perpetration
of rapes and sexual violence against Rohingya women and girls has been discussed for
two decades now. For instance, the first Special Rapporteur on the Human Rights
Situation in Myanmar noted in a 1993 report that:
Information received from over 30 interviews with Myanmar Muslim women
from Rakhine state and other women from areas of armed conflict indicated that
a large number of rapes by entire groups of Myanmar military had been taking
place. Many women provided testimony that women in villages relocated by the
army were rounded up and taken to military barracks where they were
continually raped. In other circumstances, women have allegedly been taken by
the military when the husband, or other male in the family, had fled at the
approach of the army. Often, the "pretty" or young ones were raped immediately
in front of family members and then taken away. Women who had returned to
their villages stated that some of the women among them had died as a result of
the continual rapes. Two female health workers interviewed by the Special
Rapporteur reported that in their clinic, women with rape wounds had been
admitted and had later died from bleeding or subsequent infection.54

The Special Rapporteur further indicated that some ‘[w]omen from the Rakhine state
were allegedly brought to army barracks and kept there for raping’, and that he also
‘received information that some women being forced to relocate were raped in front of
their families’.55 Material gathered for this Report shows that sexual violence and rapes
are currently still inflicted on Rohingya women and girls. The circumstances,
perpetrators and the impact of these acts on the alleged victims also appear analogous
to the reports emerging in and since the 1990s.

The circumstances of the reported incidents are varied. The Arakan Project, in a
submission to the Committee on the Elimination of Discrimination against Women,
stated that:

___________________________________________________________________________
53 Bangladesh testimonies on rape and sexual violence, supra note 38: F26-A-5; F26-A-10; F2-A-1; F27-A-
9; M27-C-5; F27-A-2; F28-A-1; M26-B-4; M27-C-1; M26-C-7; F27-A-3; F1-A-2; F27-A-8; M1-B-2; M26-C-7.
54 UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in

Myanmar(1993), supra note 1 at para. 77.


55 Ibid., at para. 111.

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Female headed-households are particularly vulnerable to sexual abuses,


including rape. Women and teenage girls are also at risk when left alone at
home while their husbands forcibly work as sentries or are absent. NaSaKa
patrols routinely enter homes at night searching for unlawfully married couples
or unregistered guests. Girls have also been raped while collecting firewood. 56

Documentary and field research indicates that Rohingya women and girls in North
Arakan State, as other women and girls in other parts of the country, are particularly
vulnerable and at risk of becoming victims during forced labour and when men are
absent. All types of forced labour appear to put women and girls at risk of rape or sexual
violence. During the course of undertaking perennial forced labour such as maintenance
tasks (e.g. cleaning and cooking) there is daily contact with soldiers or NaSaKa forces
which puts the women and girls in a vulnerable position. The time spent working in
barracks or bases, for instance, puts them at great risk of becoming victims. Sentry
duties, while only done occasionally by Rohingya women, also appear to be particularly
dangerous due to the remoteness of certain posts, the fact that this forced labour often
takes place at night in dark places and is supervised by NaSaKa. Amongst the refugees
interviewed in Bangladesh, one woman recounted how she was raped during sentry
duty. The woman reported that her husband had fled the country and that NaSaKa
started to harass her soon after this. She indicated that two years after her husband left
the country NaSaKa told her she would have to now fulfil her husband’s guard duties.
She worked as a guard eight times. The second time, she was taken to do forced labour
in the evening while she was doing household work and cooking food for her young
child. NaSaKa came to the house and kicked the front door, and she had to go to the
NaSaKa shed with her young child immediately and without food. During her duty she
fell asleep and was woken up by a member of NaSaKa. He told her ‘your husband is not
here, I will stay with you. I want to live with you.’ She tried to call out for help but there
was no one around. The NaSaKa member raped her in front of her young child. The
refugee concluded her testimony by saying: ‘We feel peace here [in Bangladesh]. There
is no food and some problems, but there is no rape, we have peace.’57

Rapes are reported to occur more frequently when men are absent from their
homes, for instance while they are carrying out forced labour, or having fled their
villages upon hearing information that troops were on their way to gather men for
labour, or simply because they are working in the fields. In some cases husbands have
allegedly also been taken away by NaSaKa, the military officers or the police, to
specifically enable members of these organisations to rape the wives. In the absence of
the men (husband, son or father) women and girls have been raped and been victims of
attempted rapes, during the day or at night in their own houses while taking their baths,
cooking dinner or simply during routine checks when NaSaKa are patrolling to verify
family lists and ensure that they are no unregistered individuals present in the houses.
Women have also reportedly been raped as a direct punishment for the alleged
membership of their sons or husbands in insurgent groups or for their failure to fulfil
tasks. Rapes and sexual crimes also occur at checkpoints and in the fields. Living in

___________________________________________________________________________
56 The Arakan Project, Issues to be Raised Concerning the Situation of Stateless Rohingya Women in
Myanmar (Burma): Submission to the Committee on the Elimination of Discrimination against Women
(CEDAW) (2008), available at http://www.burmalibrary.org/docs6/CEDAW_Myanmar_AP_Submission-
Final-Web.pdf at 3.
57 Irish Centre for Human Rights, Bangladesh testimonies, supra note 38, testimony F27-A-3.

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certain areas, such as near military or NaSaKa camps or barracks, appears to put
women at particular risk. While certain factors do appear to make the situation for
women and girls worse, the reality appears to be that there is really little that Rohingyas
can do to ensure that no rapes and/or other sexual assaults are committed. It has been
reported that being beautiful, being in the bath during patrols, undertaking forced
labour duties for a certain army unit or commander on a given day, or stopping at a
given check point at a certain time, might all lead to a woman or girl becoming a victim.
In other words, it simply suffices for a Rohingya female to be in the wrong place at the
wrong time to become a victim. Unfortunately all women and girls seem vulnerable. As
noted in a shadow report discussing the rapes of ethnic women in Burma: ‘women are
raped during their normal, daily activities. The message sent is that [they] are at risk
every day, and that it is impossible to avoid the circumstances under which the rape
might occur.’58

The total number of rapes reported by the refugees interviewed in Bangladesh is


difficult to assess. Some of the men and women interviewed did not specifically mention
that they had been raped or had witnessed rape but only implicitly indicated so, saying
for instance that soldiers or NaSaKa members “disturbed” the women. Some women
also indicated that another woman or girl had been victim of rape but it appears from
the interviews that the females giving the testimonies in question have in actual fact
been raped themselves. In many cases the environment of the interview (with more
than one of persons present) prevented the alleged victims or witnesses from providing
detailed accounts of rapes or attempted rapes. That being said, one out of four
interviews documented the perpetration of rape or attempted rape and sexual assault
on Rohingya women and girls in North Arakan State. These included several interviews
which documented multiple cases. In one case a woman indicated being rape many
times over several years. The woman interviewed also indicated that the rapes stopped
when one of her daughters became grown up and the soldiers started to abuse the
daughter instead.59 Another woman who had five sisters recounted that she had been
victim of attempted rape herself, had witnessed the attempted rape of one of her sisters,
the rape of her other sister, and the gang-rape of another sister. She further explained
that she attempted to get help from individuals in charge of the village but was told that
the NaSaKa forces ‘will do it again because they tried to rape you and your sister and
couldn’t. We can’t save you, you have to go outside the country, they will come again for
you, it’s your fault, you and your sisters are beautiful.’60

The cases documented by the Irish Centre for this report had all reportedly been
committed by members of the army and NaSaKa. The Arakan Project has also recently
undertaken preliminary research on the situation of rape in North Arakan State. The
Arakan Project documented through field reports some ‘rape cases by state authorities
in three main circumstances: 1) women in detention, in particular in NaSaKa camps, 2)
women without husbands at home during house checks at night and 3) women and girls

___________________________________________________________________________
58 Women's League of Burma in collaboration with the Women's Affair Division of the National Coalition
Government of the Union of Burma, Women in and from Conflict Areas of Burma: A Shadow Report to the
Beijing Plus Five (2000) available at http://www.womenofburma.org/Report/B5_report.pdf at 31.
59 Bangladesh testimonies, supra note 38, testimony F1-A-2.
60 Bangladesh testimonies, supra note 38, testimony F27-A-8.

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collecting firewood or working in the fields.’61 In several of the cases documented by


The Arakan Project VPDC Chairmen appeared to have been involved in the perpetration
of rape, together with one or more members of the NaSaKa or the army. The research
undertaken by The Arakan Project indicates that rape by State agents appear to be
occurring more than occasionally.62

The Rohingya refugees interviewed for this Report who spoke about sexual
intercourse with members of the military or NaSaKa clearly indicated that this was non-
consensual sex with most accounts specifically referring to rape or attempted rapes.
Refugee International indicated in its report that:
In many of the incidents documented, the women were not only raped, but were
also physically tortured in other ways, including being beaten, suffocated by
having plastic put over their head, and having their breasts cut off. In the
following ex-ample, the woman was beaten unconscious and raped, and her
pregnant sister murdered.63

The Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment explained that in Burma generally ‘[t]he soldiers committing rape
employ extreme violence, sometimes torturing and murdering their victims.’64 This
information is consistent with testimonies gathered for this Report: brutality appears to
be commonly associated with, or accompanies, rapes. Women have reportedly been
raped or sexually assaulted in public or in front of their husbands and children as well
as other members of their family. The incidents documented for this report indicate that
sex is forced upon Rohingya women and girls by the army and NaSaKa forces, and that
these acts take place under threats, coercion, and violence. Women are oftentimes
beaten if they resist rape but also during rape or attempted rape. Husbands and other
men who try to save the victims are also frequently beaten. As a result of their injuries,
women have also died following rape.

In some cases soldiers and NaSaKa members appear to be committing rape to


assert their control and show power over the Rohingya community. The impact on the
physical and mental health of the victims is disastrous. Whether it is a goal or rather a
result of their actions, the perpetration of sexual abuse and rape by the military and
NaSaKa in North Arakan State has humiliated, intimidated, and persecuted the victims,
their families and the entire Rohingya community. The abuses and the repercussions
these have on the victims continue to this day.

___________________________________________________________________________
61 C. Lewa, The Arakan Project, ‘Preliminary Research on Rape Incidence in North Arakan State’ (2010)
(on file with authors).
62 Ibid.
63 Refugee International, No Safe Place, supra note 11 at 9.
64 UN Human Rights Council, Report of the Special Rapporteur on Torture (2008), supra note 20 at 160.

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B. Prohibition of Rape and Sexual Violence under International Criminal


Law and its Application to the Rohingyas in North Arakan State

1. Development of the Legal Parameters of Rape and Sexual Violence by the ad hoc
Tribunals

The prosecution of rape under international law is relatively new. The International
Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for
Rwanda developed the international definition65 of rape and sexual violence in their
jurisprudence, and prosecuted these acts as war crimes, genocide and crimes against
humanity.

The International Criminal Tribunal for Rwanda defined the crime of rape in the
Akayesu case ‘as a physical invasion of a sexual nature, committed on a person under
circumstances which are coercive.’66 The Tribunal included a broad physical element for
the offence, indicating that ‘the central elements of the crime of rape cannot be captured
in a mechanical description of objects and body parts’:67

Like torture, rape is used for such purposes as intimidation, degradation,


humiliation, discrimination, punishment, control or destruction of a person. Like
torture, rape is a violation of personal dignity[…].68

Following this, the coercive nature of the circumstances of rape, as opposed to the non-
consent of the victim, became a key component of the offence.

The definition of rape was further developed by the International Criminal


Tribunal for the former Yugoslavia which introduced a number of mechanical aspects
and elements relating to the victim’s lack of consent. The Trial Chamber in the Kunarac
case stated that:

[T]he actus reus of the crime of rape in international law is constituted by: the
sexual penetration, however slight: (a) of the vagina or anus of the victim by the
penis of the perpetrator or any other object used by the perpetrator; or (b) of
the mouth of the victim by the penis of the perpetrator; where such sexual
penetration occurs without the consent of the victim. Consent for this purpose
must be consent given voluntarily, as a result of the victim’s free will, assessed in
the context of the surrounding circumstances. The mens rea is the intention to
effect this sexual penetration, and the knowledge that it occurs without the
consent of the victim.69

___________________________________________________________________________
65 Prosecutor v. Akayesu, (Trial Judgment) ICTR-96-4-T (2 September 1998) at para. 596 - ‘Considering the
extent to which rape constitute[s] crimes against humanity, pursuant to article 3(g) of the Statute, the
Chamber must define rape, as there is no commonly accepted definition of this term in international law.’
See also, Prosecutor v. Delalić et al., (Trial Judgment) IT-96-21-T (16 November 1998) at para. 478 –
‘Although the prohibition on rape [sic] under international humanitarian law is readily apparent, there is
no convention or other international instrument containing a definition of the term itself.’
66 Prosecutor v. Akayesu, (Trial Judgment) ICTR-96-4-T (2 September 1998) at para. 598.
67 Akayesu, ibid., at para. 597.
68 Ibid.
69 Prosecutor v. Kunarac et al., (Trial Judgment) IT-96-23-T & IT-96-23/1-T (22 February 2001) at para.

460. See also Prosecutor v. Furundžija, (Trial Judgment) IT-95-17/1-T (10 December 1998).

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The Kunarac case confirms that the definition of rape is gender-neutral, and that
penetration and the absence of consent are elements of rape. The Rwanda Appeals
Chamber later addressed the manner in which consent may be proven and states in the
Gacumbitsi case that: ‘The [p]rosecution can prove non-consent beyond reasonable
doubt by proving the existence of coercive circumstances under which meaningful
consent is not possible’.70

In addition to developing the definition of rape under international criminal law,


the judges at the International Tribunal for Rwanda and the International Tribunal for
the former Yugoslavia also discussed, in the Akayesu and the Furundžija judgements
respectively, the meaning of sexual violence. The definition of sexual violence advanced
in Akayesu simply states that the offence encompasses ‘any act of a sexual nature which
is committed on a person under circumstances which are coercive’;71 however, ‘[s]exual
violence is not limited to [the] physical invasion of the human body and may include
acts which do not involve penetration or even physical contact’.72 This was fleshed out
somewhat in Furundžija:

International criminal rules punish not only rape but also any serious sexual
assault falling short of actual penetration. It would seem that the prohibition
embraces all serious abuses of a sexual nature inflicted upon the physical and
moral integrity of a person by means of coercion, threat of force or intimidation
in a way that is degrading and humiliating for the victim’s dignity. 73

The jurisprudence of the ad hoc Tribunals has clarified the specific elements of rape and
sexual violence under international law. Article 7(1)(g) of the Rome Statute was greatly
influenced by this jurisprudence.

2. Prohibition under the Rome Statute and its Application to the Situation of the
Rohingyas

Article 7(1)(g) of the Rome Statute include, as crimes against humanity, the acts of
‘[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization,
or any other form of sexual violence of comparable gravity.’74 It provides for the
prosecution of a whole range of conduct which targets the sexual autonomy of the
individual. The factual findings of this chapter primarily relate to two modes of conduct,
namely, rape and sexual violence (‘any other form of sexual violence of comparable
gravity’).

For an act to be considered rape as a crime against humanity under the Rome
Statute, it is required that:
___________________________________________________________________________
70 Prosecutor v. Gacumbitsi, (Appeal Judgment) ICTR-01-64-A (7 July 2006) at para. 155. See also,
Prosecutor v. Muvunyi, (Trial Judgment) ICTR-00-55A-T (12 September 2006) at para. 521: ‘Lack of
consent therefore continues to be an important ingredient of rape as a crime against humanity. The fact
that unwanted sexual activity takes place under coercive or forceful circumstances may provide evidence
of lack of consent on the part of the victim’.
71 Akayesu (Trial Judgment), supra note 69 at para. 598.
72 Ibid., at para. 688.
73 Furundžija (Trial Judgment), supra note 69 at para. 186.
74 Rome Statute of the International Criminal Court (1998), U.N. Doc. A/CONF.183/9, entered into force 1

July 2002, 2187 UNTS 90, [hereinafter Rome Statute] at art. 7(1)(g).

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1. The perpetrator invaded the body of a person by conduct resulting in


penetration however slight, of any part of the body of the victim or of the
perpetrator with a sexual organ, or of the anal or genital opening of the
victim with any object or any other part of the body.

2. The invasion was committed by force, or by threat of force or coercion, such


as that caused by fear of violence, duress, detention, psychological
oppression or abuse of power, against such person or another person, or by
taking advantage of a coercive environment, or the invasion was committed
against a person incapable or giving genuine consent. 75

These elements reflect the essential definitional principles developed in the


jurisprudence of the Yugoslav and Rwanda Tribunals.

The testimonies of refugees and asylum seekers interviewed in Bangladesh for


this Report documented the rapes of several women and girls in North Arakan State.
Women indicated that they had themselves been raped: some many times and by
several soldiers or NaSaKa members. Other refugees and asylum seekers reported that
they had been direct witnesses of rape. These alleged victims and witnesses explicitly
used the term rape in their testimonies, understood by these individuals as the
penetration of the vagina of the victim by the penis of the perpetrator. No alleged cases
of men being raped have been documented for this Report. Research further indicates
that unsafe abortions are regularly performed in North Arakan State following rapes.
Hence, cases examined in this Report clearly document that Rohingya women and girls
have been victim of acts involving the physical invasion of their body.

The rapes documented for this Report have all been committed by soldiers and
NaSaKa forces, all State actors. Testimonies indicated that soldiers and NaSaKa forces
have entered the houses of the alleged victims by force, for instance by kicking open the
door of the house. Some of the alleged perpetrators were armed or in groups of several
soldiers or NaSaKa forces while performing compulsory house checks. The
perpetrators regularly committed rape while the Rohingya men were absent. Reports
have also indicated that women and girls had been raped in barracks and camps.
Clearly, these acts have been committed by force, coercion or by threat of force or
coercion. Alleged victims and witnesses explained that they could not do anything to
avoid these rapes, as they were taken by force and afraid for their lives. The research,
confidential meetings, and interviews conducted for this Report all point to
psychological oppression and physical violence being a common feature of the reported
rapes. Victims are for instance raped in front of their families and regularly beaten
(beatings that sometimes lead to death), while witnesses attempting to rescue victims
are also frequently abused.

The other prohibited act relevant to the situation of the Rohingyas under Article
7(1)(g) of the Rome Statute is ‘any other form of sexual violence of comparable gravity’.
In this chapter grave acts of a sexual nature other than rape have been referred to, and
have included attempted rapes, sexual assault, sexual violence and grave acts of a sexual
nature. In order to constitute sexual violence under the Rome Statute, it is required that:

___________________________________________________________________________
75 Elements of Crimes, Doc. ICC-ASP/1/3, at 8.

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1. The perpetrator committed an act of a sexual nature against one or more persons or
caused such person or persons to engage in an act of a sexual nature by force, or by
threat of force or coercion, such as that caused by fear of violence, duress, detention,
psychological oppression or abuse of power, against such person or persons or
another person, or by taking advantage of a coercive environment or such person’s
or persons’ incapacity to give genuine consent.

2. Such conduct was of a gravity comparable to the other offences in article 7,


paragraph 1(g), of the Statute.

3. The perpetrator was aware of the factual circumstances that established the gravity
of the conduct.76

As previously noted ‘any other form of sexual violence of comparable gravity’ includes
conduct that targets the sexual autonomy of the individual but does not need to involve
any physical contact. Reports of attempted rapes, sexual assault, sexual violence and
grave acts of a sexual nature perpetrated against Rohingya women and girls in North
Arakan State previously examined, appear to meet the criteria elaborated in the
Elements of Crimes. Clearly, the environment in which the reported rapes and the other
acts mentioned were committed is the same. These acts are perpetrated by force or
threat of force or coercion. These acts are committed by the same perpetrators who
have the same power and instil the same fear amongst the population. Hence, it is
argued that the prohibited acts of ‘any other form of sexual violence of comparable
gravity’ under the Rome Statute are committed in North Arakan State.

This analysis finds that there is sufficient material to establish that acts of rape
and sexual violence (as defined in the Elements of Crimes) are committed against the
Rohingyas in North Arakan State. The following section will examine whether these acts
are perpetrated within the context necessary to constitute crimes against humanity
under the Rome Statute of the International Criminal Court.

C. Preliminary Conclusions

Sexual intercourse and grave acts of a sexual nature, meeting the definition of the
prohibited acts of rape and sexual violence under the Rome Statue, are being forced on
women and girls by military and NaSaKa in Burma. Using documentary and field
research this section examines whether these crimes are perpetrated by the military
and NaSaKa forces, in North Arakan State and in Burma generally, as part of a
widespread or systematic attack against the civilian population, thereby constituting
crimes against humanity under Article 7(1) of the Rome Statute.

In addition to the problems inherent in gathering evidence of human rights


violations, the documentation of rape and sexual violence crimes is particularly difficult
in North Arakan State and in Burma as a whole. The trauma caused by these violations
and more specifically the stigma attached to these crimes, especially in traditional
societies, create obstacles for an analysis of the scope of abuse and perpetration of rape
and sexual violence by State actors. As explained by the Special Rapporteur on Violence
against Women:
___________________________________________________________________________
76 Elements of Crimes, ibid., at 10.

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When rape is perceived as a crime against honour or morality, shame commonly


ensues for the victim, who is often viewed by the community as ‘dirty’ or
‘spoiled’. Consequently, many women will neither report nor discuss the
violence that has been perpetrated against them. The nature of rape and the
silence that tends to surround it makes it a particularly difficult human rights
violation to investigate.77

Whilst it has been a challenge, this situation has not constituted a total impediment to
gathering evidence, and cases of rape and grave acts of a sexual nature have
nevertheless been documented in North Arakan State and in the rest of Burma. During
interviews conducted for this Report, refugees have documented the perpetration of
rape or attempted rape and sexual assault against Rohingya women and girls in North
Arakan State. Several interviews provide information on multiple cases. Reports from
non-governmental organisations and from different United Nations bodies have
documented additional cases, and confidential meetings with organisations and human
rights workers also confirmed the occurrence of these acts in North Arakan State. In the
rest of Burma, as discussed in section 1 of this chapter over 875 incidents of rape have
been documented in various reports and studies. Given that women do not commonly
report or discuss the crimes committed against them, and considering the difficulty in
accessing justice, these numbers of reported rape and acts of grave sexual violence are
believed to represent only a fraction of the number of actual cases.78 Hence there
appears to be no reason to doubt the existence of multiple commissions of rape and
grave acts of sexual violence in Burma.

The sum of elements, i.e. the prevalence of acts of rape and acts of sexual
violence, the regularity of their occurrence and the circumstances in which they occur
suggests that these crimes are not perpetrated randomly by deviant individuals. Rather,
there appear to be similarities common to these documented rapes and sexual assaults.
For instance, these violations have frequently occurred at military or NaSaKa bases and
barracks, during forced labour, during other acts of an official capacity such as house
searches and at checkpoints, as well as while women are in detention. These crimes are
also regularly perpetrated openly, for instance in front of family members. Since the
beginning of the 1990s it has been repeatedly submitted that women and girls from
ethnic minority groups are specifically targeted as victims of rape and sexual abuse.
Some organisations have suggested that the perpetration of rape and sexual violence
against ethnic minority groups are in actual fact a government policy and strategy. For
example, the organisation Women of Burma stated in their last Shadow report to the
Committee on the Elimination of Discrimination against Women that:

___________________________________________________________________________
77 UN Human Rights Council, ‘Report of the Special Rapporteur on Violence against Women, its causes
and consequences, Yakin Ertürk: Addendum: 15 Years of the United Nations Special Rapporteur on
Violence against Women, its Causes and Consequences (1994-2009) - A Critical Review’, UN Doc.
A/HRC/11/6/Add.5 (2009) at 45.
78 See for instance joint allegation letter sent to Burmese Government by the Special Rapporteur on

Violence against Women; the independent expert on minority issues; the Special Rapporteur on the sale
of children, child prostitution and child pornography; the Special Rapporteur on the Situation of Human
Rights in Myanmar, the Special Rapporteur on trafficking and the Special Rapporteur on Torture: UN
Human Rights Council, Report of the Special Rapporteur on Violence against Women (2008), supra note
18 at para. 293.

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Rape and sexual violence committed by state actors – SPDC armed forces and
authorities - are occurring throughout Burma. The majority of incidents take
place in the ethnic states which have been most impacted by the regime’s
policies of military expansion. Sexual violence is being used by the regime as an
integral part of its strategy to subjugate the ethnic peoples, and establish control
over their lands and resources. It serves multiple purposes: terrorizing local
communities into submission; flaunting the power of the dominant troops over
the enemy's women; humiliating and demoralizing ethnic resistance forces and
also serving as a "reward" to its troops for fighting. 79

While it is still difficult at present with the information at hand to reach the
conclusion that the SPDC actively promotes, directly aids and explicitly encourages the
perpetration of rapes and sexual assaults (including specifically on Rohingyas), there
appears to be a certain pattern to these crimes and it is clear that rape and sexual abuse
of women and girls from ethnic minority groups by State actors are persistent
throughout Burma.

A number of reports from Burmese non-governmental organisations,


international non-governmental organisations as well as United Nations bodies have
reached the conclusion that multiple acts of rape and sexual assaults are being
committed by State actors in Burma and that these acts, directed against civilian women
and girls, are widespread or systematic. In fact, there appears to be a clear consensus in
the international community and within civil society in Burma that the conduct of the
State actors (from the army and NaSaKa forces), involving the multiple commission of
rape and sexual acts of comparable gravity, is widespread or systematic.80 Burmese
leaders have known about the conduct of its troops and the commission of multiple
rapes and sexual abuses by soldiers in Burma, and also specifically in North Arakan
State,81 for decades now. Documented cases of rape and sexual abuse by State actors
have been brought to the attention of the Burmese leaders. Letters of allegation and
urgent appeals have also been sent by United Nations bodies to the Burmese regime and
discussed at officials meetings. SPDC representatives have also discussed and
responded to specific allegations of rape and sexual violence, including allegations made
in reports such as Licence to Rape. In its combined second and third periodic report to
the Committee on the Elimination of Discrimination against Women the SPDC stated
that, after investigations, out of 175 documented cases only two cases had been found
true. 82 Prior to this statement the Permanent Representative of Myanmar to the United
Nations indicated in a letter to the UN Secretary-General that:
___________________________________________________________________________
79 Women of Burma, CEDAW Shadow Report, supra note 5 at 55. See also Refugee International, No Safe
Place, supra note 11 at 9.
80 See for instance, Shan Human Rights Foundation and Shan Women's Action Network, ibid., at 1; Refugee

International, No Safe Place, supra note 11 at 9; UN Human Rights Council, Report of the Special
Rapporteur on the Situation of Human Rights in Myanmar(2008), supra note 28 at 87. UN Commission on
Human Rights, Report of the Special Rapporteur on Violence against Women (2006), supra note 15 at
para. 118. UN Human Rights Council, Report of the Special Rapporteur on Violence against Women
(2008), supra note 18, at para. 294.
81 See UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in

Myanmar(1993), supra note 1 at para. 77; UN Security Council, Report of the Secretary-General pursuant
to Resolution 1820, supra note 31 at para. 15.
82 See UN CEDAW, Periodic reports, Myanmar (2007), supra note 35 at para. 59: ‘With regard to the

allegations that army soldiers have committed 175 rape cases in the southern, eastern and northern
parts of Shan State made in the report entitled "Licence to Rape" published by The Shan Human Rights
Foundation (SHRF) and the Shan Woman’s Action Network (SWAN), thorough investigations were made.

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Myanmar categorically rejects the unfounded allegations of sexual violence


levelled against its armed forces. The Myanmar military has been falsely accused
of gang rape based on fallacious reports issued by the expatriate Shan Women’s
Action Network (SWAN), the Shan Human Rights Foundation (SHRF) and Kareni
Human Rights (KHRG).

To support this statement and dismiss the veracity of reports of abuses documented by
these organisations the SPDC’s Permanent representative further indicated that two of
these organisations ‘have associations with insurgent armed groups’83.

The wide range of documentation readily available on the issue of rape and
sexual violence in Burma, coupled with the official statements and responses on these
issues indicate clearly that the SPDC has knowledge of the allegation of multiple rapes
and sexual violence by their troops. As discussed in section 1.2, the inadequate response
to the alleged perpetration of these violations (including retaliation for attempting to
seek redress) promotes the idea that the multiple commission of rapes and other grave
acts of a sexual nature is acceptable. As put forward by the former Special Rapporteur
on the Situation of Human Rights in Myanmar: ‘The failure to investigate, prosecute and
punish those responsible for rape and sexual violence has contributed to an
environment conducive to the perpetuation of those acts against women and girls in
Myanmar.’84 This situation has guaranteed and continues to commonly guarantee the
impunity of perpetrators. Non-governmental organisations and United Nations bodies
have repeatedly discussed the culture of impunity as regards to rapes and other grave
acts of a sexual nature in Burma and noted how this necessarily exacerbates the
situation. These institutions have further noted the lack of mechanisms for redress and
remedies available to victims, and the absence of information about serious government
initiative to address this problem.85 The failure of the Burmese leaders to take action
cultivates the notion that commission of rape and sexual assault is acceptable. In actual
fact this inertia implicitly encourages and supports de facto the conduct of the military
and of NaSaKa forces.

This analysis indicates that there is prima facie evidence of crimes against
humanity pursuant to Article 7(1)(g) of the Rome Statute, and that the rape and sexual

Under the guidance of the Chairperson of the Anti-Trafficking in Persons Working Committee, Deputy
Minister of the Ministry of Home Affairs, 10 task forces, each comprising officials from the Myanmar
Police Force, the Department of Immigration and National Registration and the Social Welfare
Department, conducted field investigations and found out that 38 cases were old cases, 135 cases were
unreal and only two cases were true. The two perpetrators, an army officer and one other rank, in the two
cases were prosecuted and given ten-year sentence each and dismissed from the Army.’
83 Permanent Representative of Myanmar to the United Nations, ‘Letter from the addressed to

the Secretary-General to be circulated at the General Assembly’ (2007), available at


http://www.un.int/wcm/content/site/myanmar/cache/offonce/pid/2669 at para 46.
84 UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights in

Myanmar(2008), supra note 28, at para. 87. See also UN General Assembly, Report of the Special
Rapporteur Myanmar (2006), supra note 42 at para. 30; UN Human Rights Council, Report of the Special
Rapporteur on the Situation of Human Rights in Myanmar(2007), supra note 42 at para. 41.
85 UN Commission on Human Rights, Report of the Special Rapporteur on Violence against Women

(2006), supra note 15; UN CEDAW, Concluding observations (2008), supra note 25 at para. 24. UN
Security Council, Report of the Secretary-General pursuant to Resolution 1820, supra note 31 at para. 26;
UN Human Rights Council, Report of the Special Rapporteur on Violence against Women (2008), supra
note 18.

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violence acts perpetrated by the military and NaSaKa forces in Burma as a whole could
on their own constitute a widespread or systematic attack against the civilian
population. As regards to the situation in North Arakan State specifically, the existing
body of material appears too limited to reach firm conclusions that acts of rape and
other forms of sexual violence against the Rohingya population are widespread or
systematic. It is clear, however, that Rohingya women and girls are raped and sexually
assaulted by State actors in North Arakan State, and that these acts do not appear to be
isolated and random but have commonalities. This suggests that further investigation
could indeed lead to the conclusion that the offences of rape and sexual violence
committed against women and girls in North Arakan State constitute a widespread or
systematic attack directed against the Rohingya population, i.e. a crime against
humanity.

84
Chapter VI:
Deportation and Forcible
Transfer of Population

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VI. DEPORTATION OR FORCIBLE TRANSFER OF POPULATION –


ETHNIC CLEANSING?

Introduction

Thus far this Report has examined, within the crimes against humanity framework, acts
which from a general human rights perspective constitute gross violations of the
collective human dignity of the Rohingya population of North Arakan State (i.e. the
exaction of forced labour and the perpetration of rape, sexual violence). However, the
chapters adducing the factual circumstances of these violations have deliberately
avoided addressing in any great detail questions relating to: (i) the underlying intent
behind the commission of these acts, a question which essentially explores the rationale
behind the targeting of the Rohingya population; and (ii) the net results of this
concerted course of conduct. This chapter, in looking at possible commission of the
crimes of deportation and/or forcible transfer of large sections of the Rohingya
population, will have an opportunity to touch on these issues in more detail (a similar
but broader opportunity is afforded by the following chapter relating to the possible
commission of the crime of persecution). The prospect of identifying a situation in
which the deliberate forcible displacement1 of the Rohingya population is, at least on
the face of it, the ultimate goal of the SPDC is very grave indeed and certainly has the
effect of conjuring up images of ethnic cleansing practices that have been characteristic
of the worst abuses of modern history. Section A looks at the prevalence of forced
displacement in Burma generally, before moving on to consider the history of Rohingya
displacement specifically. This is followed by an examination of the main catalysts for
displacement in North Arakan State, namely, the denial of citizenship, restrictions on
freedom of movement, and the policies of land confiscation, militarization and forced
relocation/eviction. Section B discusses these factual findings in the context of the
applicable international criminal and international human rights law, while Section C
offers some preliminary conclusions.

A. Factual Findings

1. Forced Displacement in Burma

Successive Special Rapporteurs on the Situation of Human Rights in Myanmar, along


with the United Nations General Assembly, have consistently highlighted the dire
incidences of forcible transfer throughout the territory of Burma and have repeatedly
called on the SPDC to recognize the severity of the situation and to create conditions
conducive to the voluntary return and full reintegration of displaced persons.2 As
___________________________________________________________________________
1 Forcible displacement is a general term referring collectively to deportation and forcible transfer of
populations. See Rome Statute of the International Criminal Court (1998), UN Doc. A/CONF.183/9,
entered into force 1 July 2002, 2187 UNTS 90, [hereinafter Rome Statute] at art. 7(2)(d).
22 See generally: ‘Situation of Human Rights in Myanmar’, UN Doc. A/RES/63/245 (2009) at para. 4(l):

‘Strongly calls upon the Government of Myanmar…(l) To end the systematic forced displacement of large
numbers of persons within the country and the violence contributing to refugee flows into neighbouring
countries…’; repeated in ‘Situation of Human Rights in Myanmar’, UN Doc. A/RES/62/222 (2008) at para.
4(h); ‘Situation of Human Rights in Myanmar’, UN Doc. A/RES/61/232 (2007) at para. 3(d): ‘Strongly calls
upon the Government of Myanmar…To provide the necessary protection and assistance to internally
displaced persons, in cooperation with the international community’; ‘Situation of Human Rights in

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reported by Special Rapporteur Pinheiro: ‘[i]n many ethnic minority-populated areas,


repeated incidents of forced displacement – interspersed with occasional periods of
relative stability – have been a fact of life for generations’.3 This reflects the fact that the
overwhelming majority of victims of forced displacement are typically members of
ethnic minority groups resident in turbulent, conflict-prone border territories.4 In the
most recent statistical forecast by the office of the United Nations High Commissioner
for Refugees (UNHCR), by January 2010 there will be an estimated 410,000 displaced
persons within Myanmar.5 Despite existing statistical projections (which in all
likelihood represent conservative estimates), and the very obvious situation on the
ground, the Burmese Government flatly rejects any suggestion that there are a large
number of displaced persons within its territory and refuses to allow United Nations
agencies and other humanitarian actors to intervene.6 To this end, the Permanent
Representative of the SPDC to the United Nations has commented that, ‘as Myanmar is
not a country in armed conflict, we reject the assertion of the presence of a large
number of internally displaced persons’. 7

The obvious catalysts in this widespread displacement are the sporadic military
campaigns instigated by Burmese armed forces in ethnic areas whose express purpose
is to undermine the functional capacity of ethnic insurgency groups. Such attacks have a
disproportionate effect on civilian populations and have been viewed ‘by various
observers to [constitute] a concerted policy aimed at denying people their livelihoods
and food or forcing them to risk their lives when they attempt to return to their villages
after having been forcibly evicted’.8 The methodology utilized by the Burmese Army or
Tatmadaw to trigger the forcible displacement of a population usually involves the
complete destruction and land-mining of villages, making return either impossible or
too unsafe to contemplate.9 Amnesty International has reported that frequently the
inhabitants of villages attacked in this fashion are issued with “relocation orders” which

Myanmar’, UN Doc. A/RES/56/231 (2002) at paras. 18-19: ‘18. Deplores the…dispossession of land and
property, which deprives those persons of all means of subsistence and results in large-scale
displacement of persons and flows of refugees to neighbouring countries, with negative effects for those
countries, and an increasing number of internally displaced persons’; repeated in ‘Situation of Human
Rights in Myanmar’, UN Doc. A/RES/55/112 (2001) at paras. 14-15; ‘Situation of Human Rights in
Myanmar’, UN Doc. A/RES/54/186 (2000) at para. 16; General Assembly, ‘Situation of Human Rights in
Myanmar: Note by the Secretary-General – Report of the Special Rapporteur on the Situation of Human
Rights in Myanmar, Tomás Ojea Quintana’, UN Doc. A/63/341 (2008) at paras. 55-59; Human Rights
Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, Paulo Sérgio
Pinheiro’, UN Doc. A/HRC/4/14 (2007) at para. 60.
3 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in Myanmar,

Paulo Sérgio Pinheiro’, ibid., at para. 60.


4 Ibid., at para. 54.
5 UNHCR, ‘2010-11 UNHCR Planning Figures for Myanmar’, available at http://www.unhcr.org/cgi-

bin/texis/vtx/page?page=49e4877d6 .
6 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in Myanmar,

Paulo Sérgio Pinheiro’, supra note 3 at para. 54. See also, National Coalition Government of the Union of
Burma, Burma Human Rights Yearbook 2008 (2009), available at
http://www.burmalibrary.org/show.php?cat=392&lo=d&sl=0 .
7 U. Nyunt Maung Shein, Permanent Representative to Geneva, UN Human Rights Council, 27 September

2006, a webcast of this intervention is available at


http://www.un.org/webcast/unhrc/archive.asp?go=060927.
8 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in Myanmar,

Paulo Sérgio Pinheiro’, supra note 3 at para. 56.


9 Amnesty International (AI), ‘Crimes against Humanity in Eastern Myanmar’, ASA 16/011/2008 at 28.

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dictate that they must take up residence in fenced settlements known as “relocation
sites”. Such orders are usually issued orally (by either members of the armed forces or
by VPDC chairmen on their behalf) and at short notice, leaving individuals little or no
option but to abandon all property.10 Individuals who refuse to comply with such orders
and who opt instead to flee to other villages or across borders into neighbouring States,
are then deemed legitimate military targets.11 Conditions within relocation sites are
extreme with inadequate supplies of food and drinking water.12 The establishment of
relocation sites is consistent with the Burmese Government’s long-stated “Four Cuts”
policy, which aims to undermine the capacity of ethnic armed opposition/independence
groups such as the Karen National Union, Kachin Independence Organization, and the
Wa Army to access recruits, information, supplies and finances.13 The “Four Cuts” policy
was originally drawn up by General Ne Win in the mid-1960s and was seen as a tried
and tested means of wrenching back control of insurgent-controlled territories.14
However, since 1996 it has been implemented with far greater zeal and has been
accompanied by the dense militarization of ethnic border regions. According to the
Special Rapporteur on the Situation of Human Rights in Myanmar, Sérgio Pinheiro, since
1995, ‘the Army has approximately doubled the number of battalions deployed across
eastern [Burma]’.15 While over the course of the past 20 years the Burmese Government

___________________________________________________________________________
10 Human Rights Watch (HRW), ‘“They Came and Destroyed Our Village Again”: The Plight of Internally
Displaced Persons in Karen State’ (2005), available at
http://www.hrw.org/en/reports/2005/06/09/they-came-and-destroyed-our-village-again-0 at 45:
‘However, relocation orders are more likely to be issued verbally, often at a meeting of village headmen.
Villagers are usually given between zero and seven days warning to leave their homes. Sometimes they
are told to move to a designated relocation site, but villagers are not told where to go, just to vacate their
homes’.
11 Commission on Human Rights, ‘Report on the situation of human rights in Myanmar, prepared by Mr.

Yozo Yokota, Special Rapporteur of the Commission on Human Rights, in accordance with Commission
resolution 1992/58’, UN Doc. E/CN.4/1993/37 (1993) at para. 74: ‘In a number of cases reported to the
Special Rapporteur, civilians were executed when they either refuse to relocate upon orders or when they
attempted to escape to avoid relocation’. In his report the Special Rapporteur speaks about actual
relocation orders that he himself examined. See also, General Assembly, ‘Situation of human rights in
Myanmar – Note by the Secretary-General’, Un Doc. A/49/594 (1994) at para. 25.
12 HRW, ‘They Came and Destroyed Our Village Again’, supra note 10 at 48-50. See also: General Assembly,

‘Situation of human rights in Myanmar – Note by the Secretary General’, UN Doc. A/55/359 (2000) at
para. 54; Commission on Human Rights, ‘Report of the Special Rapporteur, Mr. Rajsoomer Lallah,
submitted in accordance with Commission on Human Rights resolution 1998/63’, UN Doc.
E/CN.4/1999/35 (1999) at paras. 64-66; Commission on Human Rights, ‘Report of the Special
Rapporteur, Mr. Rajsoomer Lallah, submitted in accordance with Commission on Human Rights
resolution 1996/80’, UN Doc. E/CN.4/1997/64 (1997) at paras. 72 and 89.
13 Thailand Burma Border Consortium (TBBC), ‘Protracted Displacement and Militarisation in Eastern

Burma’ (2009), available at http://www.burmalibrary.org/show.php?cat=392&lo=d&sl=0 . See also, M.


Green and D. Mitchell, ‘Asia’s Forgotten Crisis: A New Approach to Burma’, (2007) 86 Foreign Affairs 147
at 149: ‘Since 1996, when the Burmese army launched its “four cuts” strategy against armed rebels – an
effort to cut off their access to food, funds, intelligence, and recruits among the population – 2,500 villages
have been destroyed and over one million people, mostly Karen and Shan minorities, have been
displaced’.
14 See, M. Smith, Burma: Insurgency and the Politics of Ethnicity, (London. Zed Books, 2nd edn., 1999) at

258-262.
15 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in Myanmar,

Paulo Sérgio Pinheiro’, supra note 3 at para. 54.

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have reportedly concluded ceasefire agreements with some 17 ethnic insurgency


groups, such agreements are fragile and sporadic outbreaks of violence are common.16

Aside from the outright destruction and land-mining of villages which gives rise
to displacement of populations, the SPDC have for many years implemented a large-
scale and effectively arbitrary policy of land confiscation throughout the country. 17
Commenting on the policy, Pinheiro has stated that:

These confiscations appear to have several aims, including relocating civilian


populations deemed to be sympathetic to the armed opposition; anchoring a
military presence in disputed areas through the deployment or support of new
Army battalions; opening the way for infrastructure development projects…; the
extraction of natural resources, notably offshore gas; and providing various
interest groups, including the military and foreign groups, with business
opportunities.18

The authorities have attempted to give land confiscation orders a veneer of legitimacy
by relying on pre-existing legislation such as the Land Nationalization Act of 1953. This
Act, inspired by the ideology of the “Burmese Way to Socialism”, was intended to both
confer land ownership on the State while simultaneously providing farmers with certain
cultivation rights.19 However, since 1962 such rights have rarely been enjoyed by ethnic
minority communities. Articles 18 and 19 of the 1974 Constitution significantly
reinforced the 1953 Act. The relevant sections are as follows:

Article 18. The State –

(a) Is the ultimate owner of all natural resources above and below the ground,
above and beneath the waters and in the atmosphere, and also of all the lands;

Article 19.

The State shall nationalize the means of production within the land. Suitable
enterprises shall be owned and operated by co-operatives.20

Article 37 of the 2008 Constitution appears to make some concession towards


respect for property rights; however, in reality all lands remain in the hands of the
State.21 Consequentially, land is routinely requisitioned by the authorities under the
guise of infrastructural and developmental necessity (i.e. for the construction of roads,
mines, irrigation systems, and the extraction of natural resources, etc), or, more
typically, under the pretext of military necessity, which takes the form of the
___________________________________________________________________________
16 See for instance, S. Yan Naing, ‘Burmese Ceasefire Breaks Down’, The Irrawaddy, (28 August 2009),
available at http://www.irrawaddy.org/highlight.php?art_id=16658&page=1 .
17 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in Myanmar,

Paulo Sérgio Pinheiro’, supra note 3 at para. 61.


18 Ibid.
19 N. Hudson Rodd et al., ‘The Impact of the Confiscation of Land, Labour, Capital Assets and Forced

Relocation in Burma by the Military Regime’, (National Council of the Union of Burma and Federation of
Trade Unions Burma, 2004), available at http://burmalibrary.org/docs/land_confiscation-contents.htm .
20 Constitution of the Socialist Republic of the Union of Burma (1974) at arts. 18 and 19, available at

http://www.thailawforum.com/database1/constmyanmar.html [emphasis added].


21 Constitution of the Republic of the Union of Myanmar (2008), available at

http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/79572/85698/F1127243646/MMR79572.pdf art.
37

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construction of garrisons and the cultivation of land for the purpose of sustaining a
military presence in the area. Confiscation orders may be accompanied by direct
relocation orders issued by the military or civil authorities. In the eastern regions of the
country the ultimate goal of confiscation orders is to ensure the separation of armed
groups from civilian populations.22 Land confiscations are also, for instance,
accompanied by beatings, rape and sexual violence, torture, as well as forced labour
(residents of confiscated land are frequently forced to work the land on behalf of the
military or to assist in infrastructural projects).23 Irrespective of the stated rationale, the
implicit intent behind confiscation orders is to displace and subjugate ethnic
populations with a view to quelling the potential for ethnic insurgency. 24 Forced
displacement is clearly used as a tactic of containment.

There is no doubt that the issuing of arbitrary confiscation orders is entirely


contrary to international law. In regions inhabited by ethnic minorities, where there
may be situations of ongoing armed conflict, it is evident that the displacement of
civilian populations and their transfer to so-called “relocation sites” does not comport
with the requirements for the lawful removal of civilians as laid out in Article 17(1) of
Additional Protocol II to the Geneva Conventions of 1949. It may thereby constitute war
crimes as enumerated in Article 8(2)(e)(viii) of the Rome Statute,25 and presents a
prima facie case for the commission of the crime against humanity of forcible transfer of
populations. It would appear from the foregoing that in Burma generally, forced
displacement is closely associated with the suppression of ethnic insurgency and is used
as a means of reinforcing authoritarian repression. Whether this conclusion applies to
the specific situation of the Rohingyas will be examined in the following sections.

2. The Forced Displacement of the Rohingyas

The circumstances of the forced displacement of the Rohingyas differ significantly from
those of other ethnic groups such as the Karen, Kachin, Mon or Wa. Most fundamental is
the fact that there is no evidence to indicate the existence of an ongoing armed conflict
in the region. While there is a significant history of insurgency based at various times on
an assortment of claims of self-determination (ranging from federal autonomy to
nationalism and irredentism), since the mid-1990s these claims within North Arakan

___________________________________________________________________________
22 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in Myanmar,
Paulo Sérgio Pinheiro’, supra note 3 at para. 56: ‘In addition to the heightened risks posed by the
widespread availability of small arms and light weapons and anti-personnel mines, killing terrorizing or
displacement of civilians is often part of a deliberate strategy to separate ethnic armed groups from their
civilian populations’.
23 Ibid.
24 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in Mynamar,

Paulo Sérgio Pinheiro’, UN Doc. A/HRC/18 (2008) at paras. 71-72: ‘The causes of population movements
within Myanmar (internal migration) and beyond its borders (external migration) are closely linked to
the serious and systematic abuses of basic rights, and are therefore considered to be a form of forced
migration…This situation is in connection with the widespread practice of land confiscation throughout
the country, which is seemingly aimed at anchoring military control, especially in ethnic areas. It has led
to forced evictions, relocations and resettlements, forced migration and internal displacement’.
25 Rome Statute, supra note 1 at art. 8(2)(e)(viii) – ‘Ordering the displacement of the civilian population

for reasons related to the conflict, unless the security of the civilians involved or imperative military
reasons so demand’.

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State have been largely dormant if not extinct.26 However, the SPDC have consistently
stated that the militarization of the area, with the attendant enforcement of the “Four
Cuts” policy, is necessary in order to quell “Islamic terrorists” operating along the
Burma-Bangladesh border. However, such statements camouflage the intent of the
SPDC to fundamentally alter the ethnic make-up of North Arakan State.

2.1 Forced Displacement of the Rohingyas: 1978 to 1992

An examination of the substantive incidences of deportation or forcible transfer of the


Rohingyas begins most appropriately with a look at the events of February to May 1978.
As noted in the introduction to this Report, the history of Rohingya repression stretches
back to the pre-independence years of the 20th Century. However, with respect to
evidence of the perpetration of the crime of deportation or forcible transfer, the first
mass exodus of Rohingyas that attracted the attention of the international community,
is that of their mass-movement from North Arakan state across the border into the
newly independent State of Bangladesh in 1978. This represents the point at which the
Rohingyas became the target for the perpetration of widespread and systematic gross
violations of human rights. In February 1978, General Ne Win instituted the “Nagamin”
(or “King Dragon”) campaign whose stated objective was to ‘scrutinize each individual
living in the State, designating citizens and foreigners in accordance with the law and
taking actions against foreigners who have filtered into the country illegally’. 27 The
defining characteristic of the campaign was the level of violence that accompanied it.28
As Martin Smith points out, ‘whether it was really intended as a proper survey
operation never became clear because the Nagamin census quickly got out of hand
amidst widespread reports of army brutality, including rape, murder and the
destruction of Muslim mosques’.29 The net result of the campaign was the displacement,
over the Bangladeshi border (and specifically into the Cox’s Bazar region), of over
220,000 Rohingyas.30

The exact factual details of the 1978 exodus remain largely unclear; however, it
seems reasonable to conclude that over 220,000 individuals are unlikely to flee their
homes en masse unless significant coercive circumstances prevail. In responding to the
exodus, the Burmese Government suggested that those who fled were in fact ‘illegal
Bengali immigrants who had crossed into Burma as part of a general expansion in the
Bengali population in this region’.31 They further alleged that the violence was

___________________________________________________________________________
26 See, M. Yegar, Between Integration and Secession: The Muslim Communities of the Southern Philippines,
Southern Thailand, and Western Burma/Myanmar, (Maryland. Lexington Books, 2002) at 19-67.
27 Human Rights Watch (HRW), ‘The Rohingya Muslims: Ending a Cycle of Exodus’ (1996), available at

http://www.hrw.org/en/reports/1996/09/01/ronhingya-muslims-ending-cycle-exodus at 11. See also,


M. Smith, ‘The Muslim “Rohingyas” of Burma’, Paper delivered at Conference of Burma Centrum
Nederland (11 December 1995), (on file with authors). At around the same time as the initiation of the
Nagamin campaign, Operation “Ye The Ha” was instigated in order to ‘flush out insurgent forces [which
were active at the time] and their sympathizers.’
28 Clive Christie comes to the somewhat controversial conclusion that the manner in which the Nagamin

campaign was implemented, its ‘undiscriminating brutality’, has given rise to suspicions that a ‘de facto
process of ethnic cleansing’ was/is taking place. C. J. Christie, A Modern History of Southeast Asia:
Decolonization, Nationalism and Separatism (London. I.B. Tauris, 1996) at 171.
29 Smith, supra note 27 at 9.
30 See, Yegar, supra note 26 at 55.
31 Smith, supra note 27 at 9.

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instigated by ‘“armed bands of Bengalis”, “rampaging Bengali mobs” and “wild Muslim
extremists”’.32 Reactions to complaints registered by the Bangladeshi Government
(which viewed the exodus as the ‘expulsion by force of “thousands of Burmese Muslim
citizens”’33) were based on a similar policy of denial of responsibility. When repatriation
was eventually agreed to in July 1979, the Ne Win Government entered the caveat that
only those in possession of a National Registration Card would be permitted to return to
Burma while conceding that not all refugees had this documentation. Nevertheless, with
the assistance of UNHCR, by the end of 1979 the majority of Rohingyas had returned to
Arakan State.34 On their return however, many would find their land occupied by
Buddhist Rakhine settlers.

Moving forward to the second mass exodus of Rohingyas to Bangladesh, which


occurred between May 1991 and March 1992, we have concrete first-hand evidence to
draw upon in coming to a determination of the requisite status of the acts under
international criminal law. This evidence is based on our 2009 field mission to the
region (including Burma itself). During the period of May 1991 to March 1992,
somewhere in the region of 250,000 Rohingyas spilled across the Burma-Bangladesh
border into the vicinity of Cox’s Bazar. The circumstances facing Rohingya refugees on
entering Bangladesh and the response of the Bangladeshi Government and UNHCR have
been outlined in the introduction to this Report.35 However, in order to reach a
conclusion that the exodus was in fact the net result of the commission of widespread
and systematic deportation and forcible transfer, it is necessary to look at the stated
reasons behind the flight.

During the course of our field mission, numerous testimonies were gathered
from Rohingya refugees who have been resident in the Kutupalong official refugee camp
in Bangladesh since the time of the exodus that took place in the early nineties. It is
apparent from these testimonies that while there was no official Nagamin-type
campaign in place in 1992, similar levels of violence and brutality were present.
Numerous interviewees cited inter alia the gross exaction of forced labour, arbitrary
land confiscations, restrictions on freedom of movement, and widespread rape and
torture as the primary reasons for their flight. As in 1978, the circumstances on the
ground in North Arakan State left large portions of the population with no option but to
flee. Why the Burmese regime (which at the time was referred to as the State Law and
Order Restoration Council or SLORC) chose to come down so hard on the Rohingyas has
been the subject of some debate. Bertil Lintner and Human Rights Watch have
suggested that in the wake of the 1990 General Election (in which the Rohingyas were
surprisingly given the right to vote) and the effective denial of the result by the SLORC
the ‘government needed a scapegoat, a distraction and [a] common enemy to unite a
disillusioned and angry populace. They chose the Rohingyas’.36 It has also been

___________________________________________________________________________
32 Smith, supra note 14.
33 See, Yegar, supra note 26 at 56.
34 C.R. Abrar, ‘Repatriation of Rohingya Refugees’ (Dhaka. Refugee and Migratory Movements Research

Unit, 1996), available at http://www.burmalibrary.org/docs/Abrar-repatriation.htm: ‘The [repatriation


operation] commenced on 31st August 1978 and ended on 29th December 1979 and involved repatriation
of a total of 187,250 refugees…’.
35 See Chapter II (Introduction).
36 HRW, supra note 27 at 12 citing B. Lintner, ‘Diversionary Tactics: Anti-Muslim campaign seen as effort

to rally Burmans’, Far Eastern Economic Review (29 August 1991).

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suggested that the SLORC was intending on securing control of the border region with
Bangladesh (a move that is perhaps unsurprising given the tensions created between
the two States as a result of the 1978 exodus), and quelling the activities of the two
primary Rohingya insurgent groups nominally active at the time: the Arakan Rohingya
Islamic Front (ARIF) and the Rohingya Solidarity Organization (RSO).37 This initiative
led to the eventual establishment of the now notorious NaSaKa border administration
force.38 Indeed, the activities of the ARIF and the RSO provided SLORC with the perfect
excuse to implement the “Four Cuts” policy that had been so effective in other ethnic
regions.39As mentioned above, militarization is central to the “Four Cuts” policy and
with it come widespread human rights abuses as well as heightened displacement.

At around this time (i.e. circa. 1990/1991) SLORC instigated the policy of so-
called “model village” construction which involves the confiscation of land and the
transferring of individuals and families from urban areas (predominantly in central
Burma) to border regions.40 Officially the construction of “model villages” was intended
to diversify and develop remote border areas; however, this appears to be a thin veil for
the deliberate fragmentation of ethnic populations.

Since 1992, there has not been an exodus on remotely the same mass scale.
However, under the watchful eye of the NaSaKa, there has been a steady stream of
refugees entering Bangladesh, to the extent that it is now estimated that there are
approximately 200,000 unregistered Rohingyas resident in the Cox’s Bazar region.41
The current state of forced displacement will be examined in more detail below;
however, it is important to first take note, in specific policy terms, of the catalysts that
have facilitated or driven the deportation and forcible transfer of the Rohingyas.

2.2 The Root Causes of the Forced Displacement of the Rohingyas

Denial of Citizenship: The 1982 Citizenship Law

Central to each violation documented in this Report is the enduring nature of Rohingya
statelessness. The refusal of the Burmese regime to acknowledge and regularize
Burmese citizenship for the Rohingyas profoundly illustrates the level of cross-
generational discrimination that has been waged against this ethnic minority. All
repression flows from the denial of citizenship. The Burmese regime’s unwavering
position that the Rohingya population is nothing more than a small community of

___________________________________________________________________________
37 See Yegar, supra note 26 at 56.
38 See, International Federation of Human Rights (FIDH), ‘Burma: Repression, Discrimination and Ethnic
Cleansing in Arakan’ (2000), available at http://www.fidh.org/IMG/pdf/arakbirm.pdf at 7: ‘The Nasaka
(acronym for Nay-Sat Kut-kwey Ye) was set up in 1992, soon after the Rohingya exodus. In charge of
immigration, customs and more generally of frontier issues, the Nasaka has ruled for seven years of nine
sectors along the Bangladeshi frontier (eight around Maungdaw and one around Buthidaung). Made up of
several government bodies (police, military intelligence, Lon Htein (anti-riot forces) and customs), the
Nasaka plays a very important role in local political, social and economic issues… According to
testimonies given by Maungdaw and Buthidaung villagers, the Nasaka acts as an absolute ruler over the
Rohingya population and has committed most of the abuses since 1992’.
39 HRW, supra note 27 at 12.
40 Document FL-08 (on file with authors).
41 Christian Solidarity Worldwide (CSW), ‘Burma: Visit to the Bangladesh-Burma Border: 26-31 August

2008’, available at http://dynamic.csw.org.uk/article.asp?t=report&id=100 at 11.

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economic migrants leeching Burmese resources is intended to act as a cover for the
systematic forcible displacement of this minority group. The right of every person to a
nationality is enshrined in Article 15 of the Universal Declaration of Human Rights42
which also speaks of the concurrent right not to be arbitrarily deprived of nationality.
Similar provisions are found in other instruments to which Burma is a State Party,
including the Convention on the Rights of the Child43, and the Convention on the
Elimination of All Forms of Discrimination against Women44. When citizenship is given
its full meaning in a democratic society, nationals of states are empowered with the
ability to exercise their full civil, political, economic and social rights, while also
benefiting from the protection of the State both domestically and internationally. For
these reasons the right to nationality has often been referred to as the ‘right to have
rights’.45 While this notion may have some validity domestically at a
mechanistic/implementation level, it is in no sense representative of fundamental
principles of international human rights which naturally recognize the condition of
being human as the only requirement necessary for the bestowal of rights.46 Expressed
more succinctly: just because the Rohingyas are denied citizenship does not mean they
do not have human rights. Nevertheless, the SPDC frequently justifies its denial of
fundamental human rights to the Rohingyas on the basis of their “illegal status”.

The Rohingyas have experienced difficulties in obtaining citizenship since the


early days of Burmese independence. Article 11(i) of the 1947 Constitution provides
that ‘every person, both of whose parents belong to any of the indigenous races of
Myanmar [Burma]’,47 shall be a citizen of the Union. Not recognized as one of the
“indigenous races” (even though at that time the exact meaning of the term had not yet
been set down in law) the Rohingyas had to rely on Article 11(iv) of the Constitution
which provided that citizenship may be granted to:

Every person who was born in any of the territories which at the time of his
birth was included within His Britannic Majesty’s dominions and who has
resided in any of the territories included within the Union for a period of not
less than eight years in the ten years immediately preceding the 1 st January
1942 and who intends to reside permanently therein and who signifies his
election of citizenship of the Union in the manner and within the time
prescribed by law.48

___________________________________________________________________________
42 Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810 (1948), [hereinafter CRC]
art. 15.
43 Convention on the Rights of the Child, (1989), entered into force 2 September 1990, 1577 UNTS 3

[hereinafter CRC] at art. 7.


44 Convention on the Elimination of All Forms of Discrimination against Women, (1979), entered into force

3 September 1981, 1249 UNTS 13 [hereinafter CEDAW] at art. 9. Relevant provisions of instruments of
which Burma is not a party include: International Covenant on Civil and Political Rights, (1966), entered
into force 23 March 1976, 999 UNTS 171 [hereinafter ICCPR] at arts.12 and 24; Convention on the
Reduction of Statelessness, (1961), entered into force 13 December 1975, 989 UNTS 175; and Convention
Relating to the Status of Stateless Persons, (1951), entered into force 6 June 1960, 360 UNTS 117.
45 Perez v. Brownell, 356 US 44, at 64 (dissenting opinion of Warren, C.J.)
46 See generally, D. Weissbrodt and C. Collins, ‘The Human Rights of Stateless Persons’, (2006) 28 Human

Rights Quarterly 245.


47 Constitution of The Union of Burma 1947 at art. 11(i), available at http://www.blc-

burma.org/html/Constitution/1947.html .
48 Ibid., at art. 11(iv).

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There was, therefore, definite scope for citizenship for the Rohingyas under the 1947
Constitution. However, Article 11(iv) was soon supplemented by the 1948 Union
Citizenship Act (‘the 1948 Act’) which sought to limit the ability of pre-independence
immigrants to gain naturalized status. Article 3(1) of the 1948 Act defined the
indigenous races of Burma as ‘the Arakanese, Burmese, Chin, Kachin, Karen, Kayah, Mon
or Shan race and such racial groups as has settled in any of the territories included
within the Union as their permanent home from a period anterior to 1823 A.D.’. 49 There
was no express recognition of the Rohingyas and no explanation was provided as to the
meaning of ‘racial groups’. The reference to 1823, the year prior to the First Anglo-
Burman War, which resulted in the colonization of Arakan/Rakhine State, is an explicit
illustration of the determination of the immediate post-independence Burmese
Government to exclude Indo-Asian groups from benefitting from group status in the
aftermath of colonialism. However, Article 4(2) provided further that ‘[a]ny person
descended from ancestors who for two generations at least have all made any of the
territories included within the Union their permanent home and whose parents and
himself were born in any of such territories shall be deemed to be a citizen of the Union’.
In order to reduce the continued flow of Indian immigrants into Burma, all residents in
Burma were required to apply for registration within one year of the law and were
given identity cards.50 Many Rohingyas registered, obtained citizenship under Article
4(2), received National Registration Cards (NRCs), and were able to participate in the
democratic era between 1950 and 1962. The 1948 Act required parents to register their
children once they reached the age of ten years, but following the coup d’état in 1962
fewer and fewer Rohingya children were recognized and provided with the appropriate
documentation.51 The relevant authorities simply refused to accept the growth of the
Rohingya population.

The 1974 Constitution (which replaced the 1947 instrument) changed little with
respect to the criteria for the granting of citizenship, so in this sense the 1948 Act
remained in force until the entry into effect of the 1982 Burma [subsequently
“Myanmar”] Citizenship Law (“the 1982 Law”). It is no coincidence that the 1982 Law
was promulgated in the immediate aftermath of the fallout from the Nagamin campaign.
Human Rights Watch have commented that, ‘[b]oth the timing and content of the 1982
law indicate that it was deliberately targeted at the Rohingyas, while also discriminating
against other Asian immigrants who had entered the country during the British colonial
period’.52 As explained by Amnesty International in their report of the Rohingya
minority, the 1982 Law53 provides for three forms of citizenship, each with its own
identity card:
‘1. Full citizenship [pink card] is granted (sec. 3) to “Nationals such as the
Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as
have settled in any of the territories included within the State as their
permanent home from a period anterior to 1185 B.E., 1823 A.D.” Although this
definition appears on its face to be flexible (“such as”), sec. 4 grants the Council
___________________________________________________________________________
49Union Citizenship Act, 1948 at art. 3(1), available at
http://www.burmalibrary.org/docs/UNION_CITIZENSHIP_ACT-1948.htm .
50 FIDH, supra note 38 at 18.
51 Human Rights Watch, supra note 27 at 26.
52 Ibid.
53 The full text of the law is available at

http://www.unhcr.org/refworld/country,,NATLEGBOD,,MMR,,3ae6b4f71b,0.html .

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of State practically unfettered powers to decide “whether any ethnic group is


national or not.” Under sec. 5, “Every national and every person born of parents,
both of whom are nationals are citizens by birth.” In addition, under sec. 6 “A
person who is already a citizen on the date this Law comes into force is a
citizen.” Children born abroad to parents belonging to specified combinations of
citizenship categories are also citizens (sec. 7).’54

‘2. Associate citizenship [blue card] is granted, under certain conditions, to


persons who had applied for citizenship under the 1948 (sec. 23) law and their
children, and whose application was ongoing at the time of promulgation. Under
sec. 30(c), (c) an associate citizen would “be entitled to enjoy the rights of a
citizen under the laws of the State, with the exception of the rights stipulated
from time to time by, the Council of State.” This grants the government a
virtually unlimited discretion to deprive such persons of their rights as citizens.
The “Central Body” also enjoys wide discretion to revoke “associate citizenship”
on grounds that include “disaffection or disloyalty to the state” or “moral
turpitude” where a sentence has been imposed of a minimum of one year
imprisonment or a fine of one thousand kyats (sec. 35).’55

‘3. Naturalised citizenship [green card] may be granted to non-nationals such


as members of ethnic groups not recognised as indigenous races, which would
include the Rohingya. Sec. 42 stipulates “Persons who have entered and resided
in the State anterior to 4th January, 1948, and their offspring born within the
State may, if they have not yet applied under the union Citizenship Act, 1948,
apply for naturalized citizenship to the Central Body, furnishing conclusive
evidence.” Persons with parents belonging to specified combinations of
naturalised citizens, associate citizens and foreigners may also apply (sec. 43).
Other criteria apply to all applicants for naturalized citizenship; they must be
over 18, able to speak a national language well, of good character, and of sound
mind, (sec. 44). As in the case of associated citizens, the Central Body is at liberty
to determine which right naturalised citizens may or may not enjoy (sec. 53),
and has wide discretion to deprive “naturalised citizens” of their status,
including for being disloyal, or for “moral turpitude” (sec. 58).’56

The exclusion of the Rohingyas from the list of recognized “national races” means
that unless the Council of State alters the list the Rohingyas cannot become “full”
citizens. The requirement that all applications for associate citizenship be lodged within
one year of the law coming into force (i.e. October 1983) eliminates it as a viable option,
leaving naturalized citizenship as the only option for the Rohingyas. However, both
associate and naturalized citizenship are determined on the basis of documentary
evidence of ancestral or parental residency. Very few Rohingyas have access to such
documentation. Furthermore, the requirement under Section 44 that applicants for
naturalization ‘must be able to speak well one of the national languages’,57 is an obvious
stumbling block for the Rohingyas who speak their own dialect and have only very
restricted access to education through which additional language skills could be
obtained. Section 6 of the 1982 Law provides that individuals who obtained citizenship
under the 1948 Act would retain their citizenship status. This suggests that those

___________________________________________________________________________
54 Amnesty International (AI), ‘Myanmar, The Rohingya Minority: Fundamental Rights Denied’ (2004),
available at http://www.amnesty.org/en/library/asset/ASA16/005/2004/en/9e8bb8db-d5d5-11dd-
bb24-1fb85fe8fa05/asa160052004en.pdf at 36.
55 Ibid.
56 Ibid., at 37.
57 Myanmar Citizenship Law 1982 – Pyithu Hluttaw Law No. 4, available at http://www.unhcr.org/cgi-

bin/texis/vtx/refworld/rwmain?docid=3ae6b4f71b at section 44.

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Rohingyas who registered and received National Registration Cards under the 1948 Act
should continue to hold citizenship. While on paper this would seem a reasonable
interpretation, in practice the Burmese regime had no intention of extending citizenship
to the Rohingyas: ‘Those Rohingyas who had the old National Registration Cards…were
ordered to turn in their cards when they made an application for citizenship under the
new law: many of them complained that they had received neither new documents nor
the old ones back’.58

Since 1995, the Burmese Immigration and Manpower Department (IMPD) has
been issuing the Rohingyas with Temporary Registration Certificates (TRC) as a result
of pressure from UNHCR and the Bangladeshi Government. TRCs are usually only issued
to citizens between ten and twelve years of age, to citizens who have lost their National
Registration Cards, or to those citizens whose National Registration Cards have become
illegible. However, as of 2008 the situation is that out of a total eligible population of
480,000 (i.e. Rohingyas aged ten years and above) only 350,000 individuals have been
issued with TRCs.59 The TRCs include a photograph, signature and thumb-print of the
holder as well as name, father’s name, holder’s date of birth, address and occupation.
There is also a field on the card relating to “race” in which the authorities generally
write “Bengali” or “Muslim”. While TRCs have traditionally only been issued to citizens,
the TRCs issued to the Rohingyas are clearly marked ‘not evidence of citizenship’.60
While the TRCs are doubtless a step in the right direction, in reality they have done very
little to improve the situation of the Rohingyas, who are still considered foreigners and
remain de facto stateless.61

The refusal to grant citizenship allows the SPDC to effectively deny or curtail the
ability of the Rohingyas to exercise their basic human rights. For instance, as foreigners
or stateless persons the Rohingyas, inter alia, are permitted neither to vote in nor stand
for election (as per the 1989 Parliamentary Election Law62),63 are subject to severe
restrictions on freedom of movement (see below), have only limited access to education
services, have extreme difficulty obtaining work or starting a business, and are subject
to limitations on ownership of property. Importantly, non-citizen status removes any
legal standing they might have before Burmese courts. It is impossible, based on the
foregoing, to avoid the conclusion that the 1982 Law deliberately discriminates against
the Rohingya population of North Arakan State. As far as the SPDC is concerned the
Rohingyas have no right to be in the country, and they have no qualms about stating so
publically. In recent months, the official English language newspaper of the SPDC, The
New Light of Myanmar, has run such headlines as: ‘Rohinja [sic] not included in national
races of Myanmar’.64 In a letter addressed to the Consular Corps based in Hong Kong, Ye

___________________________________________________________________________
58 HRW, supra note 27 at 27.
59 Document FL-10 (on file with authors).
60 FIDH, supra note 38 at 19.
61 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in Mynamar,

Paulo Sérgio Pinheiro’, supra note 24 at para. 79.


62 The text of the law is available at http://burmalibrary.org/docs/pyithu_hluttaw_election_law.htm.
63 Although curiously the Burmese regime permitted the Rohingya to vote in the 1990 General Election

and in the 2008 Constitutional Referendum. However the ability to vote on these occasions was on the
basis of self-interest as opposed to a regularized status.
64 ‘Rohinja [sic] not included in national races of Myanmar’, The New Light of Myanmar (29 January 2009).

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Myint Aung of the Myanmar Consulate responded to the international outcry in relation
to the flight of the Rohingya “boat people”65 by stating that:

In reality, Rohingya are neither “Myanmar People” nor Myanmar’s ethnic group.
You will see in the photos that their complexion is “dark brown”. The
complexion of Myanmar people is fair and soft, good looking as well. (My
complexion is a typical genuine one of a Myanmar gentlemen and you will
accept that how handsome your colleague Mr. Ye is). It is quite different from
what you have seen and read in the papers (they are as ugly as ogres).66

As has been consistently demonstrated throughout this Report (and specifically


addressed in chapter V on the crime against humanity of persecution), the acts and
policies (both implicit and explicit) perpetrated against the Rohingyas are
fundamentally based on ethnic, racial and religious discrimination. The 1982 Law’s
deliberate targeting of the Rohingyas is the most explicit representation of this
discrimination. Such a conclusion finds ample support in the findings of successive
Special Rapporteurs on the Situation of Human Rights in Myanmar and the United
Nations General Assembly, who have repeatedly called on the Burmese Government to,
‘[r]epeal discriminatory legislation and avoid discrimination practices particularly in
Northern Rakhine State, where a large part of the Muslim community has been deprived
of citizenship and movement for many years’.67

The citizenship issue is central to any resolution of the situation of the


Rohingyas. As it currently stands, the position of the Rohingyas as stateless directly
precipitates their forcible displacement from and within North Arakan State; it was
central to their mass displacement in 1992 and continues to be the primary factor
leading to their flight from the territory.

This Section opened by stating that all violations flow from the denial of
citizenship and this is particularly true with respect to the commission of the crimes
against humanity of deportation and forcible transfer. The most obvious violations to
examine are those which directly give rise to forcible displacement: restrictions on
freedom of movement, land confiscation, and forced relocation/eviction.

Restrictions on Freedom of Movement

The classification of the Rohingyas as non-citizens has a profound impact on their


ability to move freely within North Arakan State and the interior of Burma generally.
Despite the fact that they are not officially recognised as foreigners, the SPDC subject
___________________________________________________________________________
65 See Chapter II (Introduction).
66 Consulate General of the Union of Myanmar, Hong Kong, ‘Letter of the, to All Heads of Mission, Consular
Corps, Hong Kong and Macau SAR’, (9 Febraury 2009), available at
http://asiapacific.anu.edu.au/newmandala/wp-content/uploads/2009/02/the-consul-generals-
letter.pdf.
67 See for example: ‘Situation of Human Rights in Myanmar: Note by the Secretary-General – Report of the

Special Rapporteur on the Situation of Human Rights in Myanmar, Tomás Ojea Quintana’, supra note 1 at
para. 101(a); Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights
in Mynamar, Paulo Sérgio Pinheiro’, supra note 24 at para. 78; Human Rights Council, ‘Report of the
Special Rapporteur on the Situation of Human Rights in Myanmar, Paulo Sérgio Pinheiro’, supra note 3 at
para. 59.

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the Rohingyas to the requirements provided by the 1864 Foreigners Act (amended in
1940) for all their movement within Burma. The Act provides for a strict licensing
system:

Section 10: No foreigner shall travel in or pass through any part of the Union of
Burma in which all the provisions of this act are for the time being in force
without a license.

Section 12: Every such license shall state the name of the person to whom the
license is granted, the nation to which he belongs, the district or districts
through which he is authorized to pass or the limits within which he is
authorized to travel, and the period if any during which the license is intended
to have effect. 68

The net effect of the Act is that Rohingyas who wish to travel from one village to
another, or from township to township, or indeed to any part of the country must apply
to the relevant authority (be it the VPDC, TPDC, or SPDC) for a license or permit. The
procedure for obtaining a license is often expensive – both in terms of application fees
and the bribe required – and can take up to two months to be processed with no
guarantee of a positive outcome.69 It appears practically impossible to secure a license
to leave Arakan State unless the individual is willing to pay an extortionate sum of
money.70 The strict control of movement makes it extremely difficult if not almost
impossible for Rohingyas to conduct trade between villages and townships which has
resulted in situations of extreme poverty.71 The authorities therefore exercise tight
control over Rohingya patterns of movement. The establishment of the NaSaKa in 1992
ensured that there would not be another mass exodus of Rohingyas from Arakan State
along the lines of those that were witnessed and condemned by the international
community in 1978 and 1992. Existing literature suggests that the very object and
purpose of the NaSaKa is to administer the unofficially sanctioned policy of widespread
and systematic human rights violations against the Rohingyas while also closely
regulating the flow of Rohingyas attempting to flee across the border into Bangladesh.
This policy conceals the fact that since the 1990s, tens of thousands of Rohingyas have
fled Burma (with over 200,000 Rohingyas now in Bangladesh) in what can only be
described as an ‘invisible exodus’.72

Land Confiscation: Militarization and Construction of “Model Villages” in Arakan


State

The policies and legislation that give rise to increased militarization and to the
construction of model villages throughout Burma generally is outlined above. However,
on examining these policies with respect to the Rohingyas specifically, it is evident that
compared with Buddhist Rakhines they are disproportionately affected by their
implementation. The construction of model villages throughout Burma is linked to the
___________________________________________________________________________
68 Myanmar [Burma] Foreigners Act 1864 (12 February 1864) at Sections 10 and 12, available at
http://www.unhcr.org/refworld/country,,NATLEGBOD,,MMR,,3ae6b54c4,0.html .
69 FIDH, supra note 38 at 19.
70 FIDH, ibid. For more details on the restriction of movement of the Rohingya community see also

Amnesty International (AI), supra note 54 at 13ss.


71 See generally: IDEA International Institute and IHLCA Project Technical Unit, ‘Integrated Household

living Conditions Survey in Myanmar: Poverty Profile’, (June, 2007).


72 See FIDH, supra note 38 at 21.

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“Four Cuts” policy discussed earlier; the rationale is to populate ethnic insurgent
populations with Burman communities. In some quarters this practice has been
referred to variously as colonization or more radically “Burmanization”, which aims to
bring about the ethno-homogenization of the entire population of Burma in terms of
language, religion and wider cultural practices.73

Since 1990, over 40 model villages have been constructed in the North Arakan
Townships of Maungdaw, Buthidaung and Ruthidaung.74 Each model village is planned
so as to accommodate 100 families with each family being allocated a three-acre plot of
land. Therefore since 1990, over 12,000 acres (or close to 20 square miles) of land have
been allocated for the construction of model village settlements. Land for the
construction of these villages is usually obtained via recourse to the 1953 Land
Nationalization Act referred to above. The Act allows local authorities to demand that
the land be used for a specific purpose, such as for example the cultivation of
commercial crops, or rice quotas; should the occupier of the land fail to comply with
such demands the authorities will feel that it is within their rights to confiscate the
land.75 Once the order for the construction of a model village is made, the VPDC
Chairman will begin confiscating land, often citing arbitrary reasons or by simply
stating that their right to occupy the land has been rescinded.76 Confiscations are not
subject to any formal procedures meaning that there is no right of appeal. The
confiscated land will then be distributed amongst the “model villagers”. The Rohingyas
are often forced to provide labour and materials for the actual construction of the model
villages.77 Model villages are usually structurally superior to pre-existing Rohingya
homes and are wired for electricity which is practically unheard of outside of the
townships of Maungdaw, Buthidaung and Ruthidaung. Rohingya forced labour is also
used to construct pagodas and schools to be utilized by the model village families.

A typical inhabitant of a model village is an urban-dwelling Burman from


Rangoon or Mandalay who has been relocated to the region. It has been suggested that a
sizeable proportion of model villagers have themselves in fact been forcibly relocated to
the region as a result of alleged criminal activity or destitution.78 Many have no
agricultural skills and it is common for the Rohingyas to lease confiscated land back off
the model villagers. It is worth noting that on many occasions model villagers have been

___________________________________________________________________________
73 Burmanization professes that all the ethnic minorities of Burma are in fact simply subsets of a unified
Burman identity. It’s origins can be traced to pre-independence. See: R.A. Holmes, ‘Burmese Domestic
Policy: The Politics of Burmanization’, (1967) 7 Asian Survey 188; B. Matthews, ‘Religious Minorities in
Myanmar: Hints of a Shadow’, (1995) 4 Contemporary South Asia 287.
74 Document FL-08, supra note 40.
75 FIDH, supra note 38 at 21. See also Document FL-08, supra note 40; N. Hudson Rodd et al., supra note 19

at 11-13.
76 Document FL-08, ibid.
77 FIDH, supra note 38 at 23. See Chapter IV (Enslavement – Forced Labour).
78 Ibid: ‘Some of the settlers are allegedly former criminals to whom three land acres per family were

given…[I]nformation gathered in the Burmese capital showed that the Yangon District Development
Council (YDDC) had planned to relocate 50,000 inhabitants of the shantytown area outlying Lanthaya in
order to build a new residential zone. These destitute city dwellers, who had already been forced to flee
Rangoon in 1992 during the cleansing operation for the year of tourism in 1996, will now have the
possibility of settling in…Arakan’.

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known to flee the settlements. However, it is not known where they go or whether they
are subsequently punished.79

The heightened militarization of North Arakan State since 1994 has resulted in
significant land confiscations deemed necessary for the construction and upkeep of the
NaSaKa and the army. As with model villages, displaced Rohingyas are frequently forced
to construct military installations or to cultivate their own land for the exclusive benefit
of the military.80

The net result of increased model villages - and garrison construction is the
heightened displacement of the Rohingyas. Communities have been pushed further
north towards the outer limits of Maungdaw and Buthidaung. According to FIDH:

As an essential element of the governmental policy of the colonization and


militarization of North Arakan, forced relocations are diverse and mainly serve
three purposes: to “clean” Arakan of its Rohingya population and concentrate it
in the northern part of the districts of Maungdaw and Buthidaung; to increase
the presence of Buddhist settlers, in order to “reconquer” the region through
model villages; to contain the Rohingya population with increased military
presence…Muslim villages outside the far North are becoming rare. Most of the
Rohingyas who lived in the Kyauktaw, Mrauk-U or Minbya districts have been
forcibly displaced to the North…81

While denial of citizenship facilitates forced displacement, land confiscation is but one
of the modes of its physical implementation, the other is out-and-out forced
relocation/eviction.

Specific Forced Relocation/Eviction

Numerous cases of the wholesale forced relocation/eviction of Rohingya villages have


been documented since the early 1990s. In his report to the United Nations Commission
on Human Rights in January 1995, Special Rapporteur Yokota gave some examples
based on reliable sources:

[O]n 9 July 1994, some 80 persons are said to have been forced to leave Kyein-
ta-li village in southern Rakhine State; they were forced to leave on very short
notice and were not allowed to bring any property with them. In another
example, about 1,500 persons were said to have been forced to leave their
homes in Nga-let village in Min-pya township in northern Rakhine State on 13
July 1994; these persons are said to have been rounded up by the military and
put on seven boats. In July 1994, in Rakhine State, a Muslim community
composed of 250 households was allegedly forced to move from their native
village of Ngla, in Minbya township, to Mang Daw township. In a third example,
another Muslim community composed of 250 households was reportedly forced
to move from their village of Kawalong, Myauk U township, to be relocated in
Mand Daw on 4 October 1994.82
___________________________________________________________________________
79 Document FL-08, supra note 40.
80 FIDH, supra note 38 at 23. See relevant sections of Chapter IV (Enforcement – Forced Labour).
81 FIDH, ibid., at 24.
82 Commission on Human Rights, ‘Report on the situation of human rights in Myanmar, prepared by the

Special Rapporteur, Mr. Yozo Yokota, in accordance with Commission resolution 1994/85’, UN Doc.
E/CN.4/1995/65 (1995) at para. 118. Yokota also alluded to ‘resettlement policies’ in his report to the
Commission on Human Rights, ‘Report on the situation of human rights in Myanmar, prepared by Mr.

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Some 13 years after Yokota’s report the practice of forced relocation/eviction appears
to remain prevalent in North Arakan State. One refugee interviewed for this Report
recounted the details surrounding the forced relocation of his entire village (Kyat-
Minbyar, located near Sittwe) to Maungdaw and Buthidaung. According to this refugee,
the relocation process was systematic: all families were given one week’s notice of their
removal from the village along with instructions not to sell or transport property. They
were informed that they would be moving to newly constructed dwellings. When an
explanation for their removal was sought, the District Officer of the VPDC simply stated
that, following recent skirmishes with local Rakhines, it was deemed desirable for the
Rohingya minority to be relocated to Maungdaw and Buthidaung. One week later,
NaSaKa and local police loaded approximately 200 Rohingya families without
possessions onto a ferry boat. They remained on the boat for over 24 hours without
food or water, and without permission to stand or talk. Any disobedience was met with
extreme violence. The Rohingya refugee stated that there were at least two fatalities
over the course of that 24 hour period. After the villagers were ordered to disembark
they were immediately loaded on to waiting military vehicles and transported to
villages around Maungdaw and Buthidaung. They were informed by local authorities
that they would be provided with homes and jobs in due course; such assurances turned
out to be of little worth.83 This account is consistent with other accounts of forced
relocation which were obtained during the field mission and which have occurred at an
alarming frequency throughout Burma since 1962.84 The process is arbitrary, violent,
and at time fatal. It is evident that forced displacement is ongoing in North Arakan State,
and that these accounts are not simply historical, but may be representative of
contemporary realities. They are also textbook examples of the crime of forcible
transfer of populations.

B. The Prohibition of Forced Displacement under International Criminal


and Human Rights Law

This section examines the factual findings in the context of the prohibition of forced
displacement under the applicable international criminal and international human
rights law. Whether a prima facie case can be made that specific acts, such as those
outlined in the above testimony or campaigns such as the Nagamin or the “Four Cuts”
policy, constitute the crime against humanity of deportation or forcible transfer of
populations is dependent on the establishment of certain criteria enshrined in Article
7(1)(d) of the Rome Statute.

Like the majority of acts for which individual criminal responsibility is attached
under international criminal law, the prohibition of forced displacement has been
subject to significant development since its original appearance under Article 6(b)
(formulated as the war crime of ‘ill-treatment or deportation to slave labour’) and 6(c)

Yozo Yokota, Special Rapporteur of the Commission on Human Rights, in accordance with Commission
resolution 1992/58’, UN Doc. E/CN.4/1993/37 at 133.
83 Irish Centre for Human Rights, Bangladesh Fact-Finding Mission 2009, testimonies: M1-B-4 (on file

with authors) [hereinafter Bangladesh testimonies].


84 See generally, TBBC, ‘Protracted Displacement’, supra note 13.

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(as the crime against humanity of deportation) of the Charter of the IMT.85 It is worth
noting that prior to its inclusion in the IMT Charter, there was no express mention of the
prohibition of forced displacement in pre-existing international instruments
(humanitarian or otherwise).86

The development of the offence was significantly accelerated by the


jurisprudence of the Yugoslav Tribunal. It is worth noting that prior to the
establishment of the Yugoslav Tribunal and the resulting judicial creativity, there was
no express acknowledgement (other than in obiter dicta statements) of the distinction
to be made between the offences of deportation and the forcible transfer of populations.
The exact nature of the distinction was mentioned in the introduction to this chapter
and will be dealt with in greater detail below. With the drafting of Article 7(1)(d) of the
Rome Statute,87 forcible transfer of population was expressly recognized as a crime
against humanity.

1. Deportation or Forcible Transfer of Population under Article 7(1)(d) of the


Rome Statute: Does a prima facie Case Exist with Respect to the Rohingyas?

1.1 Scope of the Offence under Article 7(1)(d) as Derived from Existing
Jurisprudence

The disjunctive inclusion of forcible transfer of populations in Article 7(1)(d) is merely


representative of the common distinction which has been made between the two forms
of the offence in the jurisprudence of the Yugoslav Tribunal and is consistent with
customary international law standards.88 The difference between the offences
essentially boils down to whether or not the victim has been forced across an
international border:

___________________________________________________________________________
85 ‘Charter of the International Military Tribunal (IMT),’ in Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis (London Agreement), entered into force 8
August 1945, 82 UNTS 280 [Charter of the IMT] at art. 6(b) and 6(c). Count 3J of the IMT Indictment was
formulated in the following way: ‘In certain occupied territories purportedly annexed to Germany the
defendants methodically and pursuant to [a specific] plan endeavoured to assimilate these territories
politically, culturally, socially and economically into the German Reich. They endeavoured to obliterate
the former national character of these territories. In pursuance of these plans, the defendants forcibly
deported inhabitants who were predominantly non-German and replaced them [with] thousands of
German colonists.’ Similar provisions are to be found in: The Charter of the International Military
Tribunal for the Far East (26 April 1946), reprinted in N. Boister and R. Cryer (eds.) Documents on the
Tokyo International Military Tribunal: Charter, Indictment and Judgments (Oxford. Oxford University
Press, 2008) at 8, art. 5(c); and Control Council Law No. 10, Punishment of Persons Guilty of War Crimes,
Crimes against Peace and against Humanity, 20 December 1945, (1946) 3 Official Gazette Control for
Germany 50-55 at art. II(1)(c).
86 With respect to its position as a war crime neither the 1899, nor the 1907 Hague Regulations contain an

express provision. Commenting on this, to say the least, surprising omission Georg Schwarzenberger
argued that at the time of the drafting of the Regulations, ‘to raise the issue of the illegality of deportation
of the population of occupied territories was considered unnecessary; the illegality was taken for
granted’, see G. Schwarzenberger, International Law as Applied by International Courts and Tribunals: The
Law of Armed Conflict (London. Stevens, 1968) at 227, quoted in J.M. Henckaerts, Mass Expulsion in
Modern International Law and Practice (The Hague. Martinus Nijhoff Publishers, 1995) at 152.
87 Rome Statute, supra note 25 at Art 7(1)(d).
88 See Roy S. Lee et al., The International Criminal Court: Elements of Crimes and Rules of Procedure and

Evidence (New York. Transnational Publishers, 2001) at 86-88.

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Both deportation and forcible transfer relate to the involuntary and unlawful
evacuation of individuals from the territory in which they reside. Yet, the two
are not synonymous in customary international law. Deportation presumes
transfer beyond State borders, whereas forcible transfer relates to
displacements within a State.89

In other words, deportation refers to the forced removal of people from one country to
another, while forcible transfer of population refers to the compulsory movement of
people from one area to another within the same State.90 In the present context
therefore, the mass displacement of Rohingyas across the Burma-Bangladesh border
would potentially fall under the offence of deportation, while the displacement of
Rohingyas within North Arakan State (as precipitated by land confiscations and forced
relocations/evictions, etc.) points to the possible commission of forcible transfer.

Despite the basic distinction between deportation and forcible transfer, the
elements of both offences are for all intents and purposes the same.91 As the Trial
Chamber of the Yugoslav Tribunal stated in the Simić case, ‘the legal values protected by
deportation and forcible transfer are the right of the victim to stay in his or her
community and the right not to be deprived of his or her property by being forcibly
displaced to another location’.92 Both offences therefore protect the same “values”.93
This contention was supported by the trial judgment in the Krstić case where it was
acknowledged that ‘any forced displacement is by definition a traumatic experience
which involves abandoning one’s home, losing property and being displaced under
duress to another location’.94

In terms of basic common underlying elements, it is settled that the common


material element (actus reus) of the offences under Article 7(1)(d) is: (i) the
displacement of persons by expulsion or other coercive acts, (ii) without grounds
permitted under international law, (iii) from an area in which they are lawfully
present.95 To this we can add a general mental element (mens rea) requirement of

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89 Prosecutor v. Krstić, (Trial Judgment) IT-98-33-T (2 August 2001) at para. 521.
90 See, G. Mettraux, ‘Crimes against Humanity in the Jurisprudence of the International Criminal Tribunals
for the former Yugoslavia and for Rwanda’, (2002) 43 Harvard International Law Journal 237 at 287-288:
‘Deportation may be distinguished from “forcible transfer”, as the former presumes movement beyond the
state borders, and the latter relates to displacements within a state’ [emphasis in the original]. See also:
Prosecutor v. Krnojelac, (Trial Judgment) IT-97-25-T (15 March 2002) at 474; and Prosecutor v. Stakić,
(Appeal Judgment) IT-97-24-A (22 March 2006) at paras. 278, 317.
91 C.K. Hall, ‘Article 7(1)(d) – Deportation or Forcible Transfer of Population’, in O. Triffterer (ed.),

Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article
(München. C.H. Beck/Hart/Nomos, 2edn. 2008) at 194-195.
92 Prosecutor v. Simić et al., (Trial Judgment) IT-95-9-T (17 October 2003) at para. 130.
93 Prosecutor v. Milošević, (Decision on Motion of Judgment of Acquittal) IT-02-54-T (16 June 2004) at

para. 69. See Simić et al., Trial Judgment, ibid., at para. 123, ‘Accordingly, the Trial is satisfied that
deportation and forcible transfer share the same substantial elements apart from deportation requiring
that a national border must crossed.’
94 Krstić, Trial Judgment, supra note 89 at para. 523. See Simić et al., Trial Judgment, supra note 92 at para.

123.
95 G. Boas et al., International Criminal Law Practitioner Library: Volume II – Elements of Crimes under

International Law (Cambridge. Cambridge University Press, 2008) at 69

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intent to deport or forcibly transfer the victim.96 These criteria are largely replicated in
Article 7(2)(d), which simply states that:

‘Deportation or forcible transfer of population’ means forced displacement of


the persons concerned by expulsion or other coercive acts from the area in
which they are lawfully present, without grounds permitted under international
law.97

Further guidance as to the full scope of Article 7(1)(d) is provided by the


relevant sections of the Elements of Crimes document which is annexed to the Statute.
While essentially reiterating the above underlying criteria, the Elements of Crimes does
clarify the meaning to be given to the term “forced” or “forcibly”. The document states:

[T]he term “forcibly” is not restricted to physical force, but may include threat of
force or coercion, such as that caused by fear of violence, duress, detention,
psychological oppression or abuse of power against such person or another
person, or by taking advantage of a coercive environment.98

This definition was adopted in full by the Trial Chamber in the Simić case, which added
that ‘the essential element is that the displacement be involuntary in nature’, and that
‘the relevant persons had no real choice’. In other words, a civilian is involuntarily
displaced if he is ‘not faced with a genuine choice as to whether to leave or to remain in
the area…an apparent consent induced by force or threat of force should not be
considered to be real consent’.99

Considering the factual findings outlined above, it seems clear that the NaSaKa,
the army and other organs of the SPDC use a combination of both direct physical
force100 and coercion manifested as fear of violence,101 duress and psychological
oppression102 to effect the deportation and forcible transfer of the Rohingya population
of North Arakan State. Since at least 1978, successive regimes103 have actively sought to
alter the ethnic makeup of Rohingya communities through a combination of enhanced
militarization, land confiscations, forced relocations/evictions and the construction of
model villages. The persistent refusal to recognize the citizenship of the Rohingyas has
precipitated widespread and gross human rights violations that have left hundreds of
thousands of civilians with no genuine option but to flee the territory and thousands
more in a state of complete repression. For the purpose of the Rome Statute, the general
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96 Simić et al., Trial Judgment, supra note 92 at para. 124: ‘Upon the basis of the foregoing, the following
common elements need to be ascertained for a finding that an act of deportation or forcible transfer has
occurred; (i) the unlawful character of the displacement; (ii) the area where the person displaced lawfully
resided and the destination to which the person was displaced; and (iii) the intent of the perpetrator to
deport or forcibly transfer the victim.
97 Rome Statute, supra note 1 at Art 7(2)(d).
98 Elements of Crimes, Doc. ICC-ASP/1/3, at 7, footnote 12.
99 Simić et al., Trial Judgment, supra note 92 at para. 125.
100 Especially visible in instances of direct, physical, forced relocation such as that documented by

Bangladesh testimonies, supra note 83: M1-B-4.


101 Seen for example in the threat that those refusing to comply with relocation orders will be deemed

legitimate military targets – Chapter VI (Deportation or Forcible Transfer of Population).


102 Most evident in the relentless denial of fundamental human rights such as the right to a nationality and

freedom of movement –Chapter VI (Deportation or Forcible Transfer of Population).


103 I.e. Burma Social Programme Party (1962-1988), the SLORC (1988-1997) and the SPDC (1997-

present).

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requirements for crimes against humanity appear to have been met. The “attack”
(understood as the commission of multiple prohibited acts) against the Rohingyas has
been relentless since 1978. That civilian populations have been the objects of that attack
is undisputable. The acts documented are clearly not isolated incidences of criminality,
but rather appear to be part of a widespread and systematic attack against this ethnic
group. The physical element of both deportation and forcible transfer are established –
the Rohingyas are lawfully present in North Arakan State, their displacement has been
effected by coercive means and cannot be justified under the permissible exceptions to
such actions clearly laid out in international law.

The pattern of criminality stretches back to 1978 with the implementation of the
Nagamin campaign and continues today in the guise of the “Four Cuts” policy. Whether
these policies are potentially illustrative of the Burmese regime’s intent to ethnically
cleanse/homogenize North Arakan State will be given some attention in below.
However, it can be said with considerable conviction that the evidence indicates, prima
facie, that the crimes against humanity of deportation and forcible transfer are being
committed against the Rohingyas.

The following sections examine the factual findings further in light of supporting
international human rights law, while also giving some thought to the value in, and
possibility of, labelling the impugned acts and policies as part of a wider strategy of
ethnic cleansing.

1.2 Why the Displacement of the Rohingyas is not Permissible under International
Law

The allusion in Article 7(2)(d) of the Rome Statute to ‘grounds permitted under
international law’, refers to the fact that international law does allow limited scope for
the deportation of aliens from the territory of a State.104 In looking at incidences of
lawful displacement of populations, the Yugoslav Tribunal has typically focused on
Article 49 of Geneva Convention IV Relative to the Protection of Civilians105 and Article
17(1) of Additional Protocol II to the Geneva Conventions of 1949 106 which provide for
the permissible removal/evacuation of civilian populations during periods of armed
conflict for reasons of civilian security or military necessity. With such permissible
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104 A similar requirement was included in Article 18(g) of the 1996 Draft Code of Crimes against the Peace
and Security of Mankind which spoke of ‘arbitrary deportation or forcible transfer of population’. The
Commentary annexed to the Draft Code clarified what was meant by the adjective ‘arbitrary’ in this
context: ‘The term “arbitrary” is used to exclude the acts when committed for legitimate reasons, such as
public health or well being, in a manner consistent with international law.’ Draft Code of Crimes Against
the Peace and Security of Mankind with Commentaries, Yearbook of the International Law Commission,
1996, volume II, Part Two at 49.
105 Geneva Convention relative to the Protection of Civilian Persons in Time of War, entered into force 21

October 1950, 75 UNTS 287 at arts. 49, para. 2: ‘Nevertheless, the Occupying Power may undertake total
or partial evacuation of a given area if the security of the population or imperative military reasons do
demand…Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the
area have ceased’. See Stakić, Appeal Judgment, supra note 90 at para. 300.
106 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of

Victims on Non-International Armed Conflicts (Protocol II), entered into force 7 December 1978, 1125
UNTS 609, at art. 17: ‘1. The displacement of the civilian population shall not be ordered for reasons
related to the conflict unless the security of the civilians involved or imperative military reasons so
demand...’

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grounds comes the requirement that persons so evacuated must be ‘transferred back to
their homes as soon as the hostilities in the area in question have ceased’.107 Naturally,
these exceptions are only applicable in the context of an armed conflict. While the SPDC
may publically state that the militarization of North Arakan State is necessary in order
to quell an “Islamic insurgency”, this Report has not found evidence to suggest that the
region is either embroiled in a protracted armed conflict or that there is any prospect of
a sustained rebellion from organizations such as the RSO.108 The absence of an armed
conflict therefore negates the possibility of the displacement of the Rohingya population
falling within the permissible exceptions to such conduct established under the
international law of armed conflict. The law of armed conflict simply does not apply in
this context.

Turning instead to the relevant provisions of international human rights law, it is


evident that States are, in most cases, prohibited from deporting nationals, and from
deporting aliens in an arbitrary fashion. Not unsurprisingly, the tenor of this prohibition
applies in large measure to the forcible transfer of populations and is inherent in the
right to freedom of movement and the selection of a place of residence. In terms of
concrete provisions an obvious starting point is Article 12 of the International Covenant
on Civil and Political Rights (‘ICCPR’) which states109:

1. Everyone lawfully within the territory of a State shall, within that territory, have the
right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.110

Paragraph 12(3) lays out the scope of permissible restrictions which may be placed on
freedom of movement:

3. The above-mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public order
(ordre public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.111

While on the face of it the wording of Article 12(3) could be interpreted in a manner
such as to justify practically all restrictions on movement, including in certain
circumstances deliberate displacement, it is clear from the case-law of the United
Nations Human Rights Committee that any interference with the rights derived from

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107 Prosecutor v. Brđanin, (Trial Judgment) IT-99-36-T (1 September 2004) at para. 556.
108 The SPDC, in denying the presence of displaced populations, have themselves stated that ‘Myanmar is
not a country in armed conflict’. U. Nyunt Maung Shein, Permanent Representative to Geneva, UN Human
Rights Council, 27 September 2006, quoted by AI ‘Crimes against Humanity in Eastern Myanmar’, supra
note 9 at 28.
109 This is not to exclude the relevance of articles 13 and 17 of the UDHR, supra note 42: Art. 13: ‘1.

Everyone has the right to freedom of movement and residence within the borders of each State. 2.
Everyone has the right to leave any country, including his own, and return to his country.’ Art. 17:
‘Everyone has the right to own property alone as well as in association with others. 2. No one shall be
arbitrarily deprived of his property.’
110 ICCPR, supra note 44 at art. 12(1) and (2).
111 Ibid., at art. 12(3).

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Article 12 must be compatible with the broad requirements of a democratic society.112


To this end, General Comment 27 of the United Nations Human Rights Committee,
which focuses on Article 12, further provides that:

Article 12, paragraph 3, clearly indicates that it is not sufficient that the
restrictions serve the permissible purposes; they must also be necessary to
protect them. Restrictive measures must conform to the principle of
proportionality; they must be appropriate to achieve their protective function;
they must be the least intrusive instrument amongst those which might achieve
the desired result; and they must be proportionate to the interest to be
protected.113

The wording of Article 12(3) is mirrored in the provisions of a number of regional


human rights instruments such as Article 2 and 3 of Protocol 4 to the European
Convention on Human Rights114, Article 22(3) of the American Convention on Human
Rights115 and Article 12(2) of the African Charter on Human and Peoples’ Rights.116
While these provisions relate to the displacement of nationals of a State, similar
provisions are in place to protect against the arbitrary displacement of aliens. For
instance, Article 13 of the International Covenant on Civil and Political Rights makes
clear that a lawful alien may only be expelled from a State in accordance with law and
shall, ‘except where compelling reasons of national security otherwise require, be
allowed to submit the reasons against his expulsion and to have his case reviewed’ by a
competent body.117 However, since the Rohingyas have not, per se, been formally and
physically expelled from the territory – the SPDC preferring instead to rely on the
establishment of an environment so coercive as to make flight the only option – Article
13 is not especially useful in the present context.

While Article 12(3) of the ICCPR addresses the circumstances under which a
State may restrict a national’s right to move freely within a territory and to leave that
territory altogether, Article 12(4) provides for the correlative right to return to one’s
own country.118 It implies an absolute prohibition of enforced population transfers or
mass expulsions of populations. General Comment 27119 maintains that the reference in
Article 12(4) to ‘his own country’ is not limited to nationality in a formal sense:

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112 See generally, M. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl. N.P. Engel
Verlag, 2005) at 270-282.
113 ‘General Comment No.27’, UN Doc. CCPR/C/21/Rev.1/Add. 9, (1999) at para. 7.
114 Convention for the Protection of Human Rights and Fundamental Freedoms, (1950), entered into force

3 September 1953, 213 UNTS 222 [hereinafter ECHR] at art. 4. Article 3 states: ‘1. No one shall be
expelled, by means either of an individual or of a collective measure, from the territory of the State of
which he is a national.’
115 American Convention on Human Rights, (1969), entered into force 18 July 1978, 1144 UNTS 123

[hereinafter ACHR] at art. 22(3).


116 African Charter on Human and Peoples’ Rights, entered into force 21 October 1986, OAU Doc.

CAB/LEG/67/3 rev.5, at art. 12(2).


117 ICCPR, supra note 44 at art. 13. See also, ECHR Protocol 4, art. 4 which simply states, ‘Collective

expulsion of aliens is prohibited.’ See also, ECHR Protocol 7, art. 1 and ACHR, supra note 115 at art. 22(9).
118 ICCPR, supra note 44 at art. 12(4) - ‘[n]o one shall be arbitrarily deprived of the right to enter his own

country’.
119 The Human Rights Committee lays down its interpretation of the provisions of the ICCPR in what are

called General Comments, which amount to concise explanatory memorandums, but are in effect
subsidiary sources of law.

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…it embraces, at the very least, an individual who, because of his or her special
ties to or claims in relation to a given country, cannot be considered to be a mere
alien. This would be the case, for example, of a national of a country who has
been stripped of their nationality in violation of international law. 120

The fact that the Rohingyas have been persistently denied citizenship rights under
Burmese law does not mean that they can automatically be considered to be unlawfully
present within the territory of Burma, and that they, as a result of this denial, cannot
benefit from the right to freedom of movement enshrined in Article 12(1). Despite
protest to the contrary, the SPDC are in flagrant breach of Article 12 in its entirety:
despite being lawfully present within the territory, the Rohingyas are denied freedom of
movement by the complex travel licensing system in place; they are not “free” to leave
the country but do so under coercion; and finally, the restrictions imposed on their
freedom of movement are arbitrary and in no sense compatible with Article 12(3).

The permissible restrictions outlined in Article 12(3) apply equally to freedom of


movement within a territory and should be viewed as protecting against the arbitrary
internal displacement of persons. A better understanding of States’ minimum
obligations in this respect is provided by the Guiding Principles on Internal
Displacement. Principle 6 clearly sets out the applicable legal standards and is an
especially useful tool. Paragraph 1 sets out the basic parameters of protection:121
1. Every human being shall have the right to be protected against being arbitrarily
displaced from his or her home or place of habitual residence.

The right is therefore not dependent on nationality, or lawful presence, but simply on
“habitual residence”. Paragraph 2 gets into some specifics with respect to the scope of
the prohibition. When applied to the policies pursued by the SPDC in North Arakan
State (and in other ethnic minority regions) the results are distressing.

2. The prohibition of arbitrary displacement includes displacement:


(a) When it is based on policies of apartheid, “ethnic cleansing” or similar practices
aimed at/or resulting in altering the ethnic, religious or racial composition of the
affected population.

The fundamental objective of the SPDC in implementing its “Four Cuts” policy is to affect
the ethnic, religious and racial make-up of certain regions. Add to this the regime of land
confiscations, model village construction and forced relocations/evictions and it is
difficult to come away with any other conclusion other than that ethnic cleansing is
being perpetrated (this will be addressed in further detail in sub-Section (iii) below).

(b) In situations of armed conflict, unless the security of the civilians involved or
imperative military reasons so demand.

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120General Comment No.27, supra note 113 at para. 20.
121Guiding Principles on Internal Displacement, UN Doc. E/CN.4/1998/53/Add.2 (1998) at principle 6.
Principles 7 and 8 define the protections that must be put in place in situations of lawful displacement.
See also, W. Kalin, ‘Guiding Principles on Internal Displacement: Annotations’, (2000) 32 Studies in
Transnational Legal Policy 1.

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This has been discussed in detail above – international humanitarian law does not
supply the SPDC with an escape clause.

(c) In cases of large-scale development projects, which are not justified by


compelling and overriding public interests.

The construction of garrisons, model villages and supporting infrastructure on


confiscated civilian property can hardly be described as being in the public interest.

(d) In cases of disasters, unless the safety and health of those affected requires their
evacuation.

(e) When it is used as a collective punishment.

Compared to the level of displacement caused by Cyclone Nargis throughout Lower


Burma in May 2008, the Rohingyas and North Arakan State generally have emerged
relatively unscathed from natural disasters. With respect to collective punishment,
while SLORC extracted heavy reprisals following an RSO offensive in 1994, 122 the stated
rationale for the displacement of Rohingyas has not revolved around collective
punishment as such.123

The international legal standards guiding permissible displacement are therefore


strict and not easily circumvented. The deliberate displacement of the Rohingyas finds
no justification under international human rights law, it is contrary to the ICCPR, the
Universal Declaration of Human Rights and the minimum standards laid down in the
Guiding Principles on Internal Displacement. Whether it should be argued that it
amounts to wholesale ethnic cleansing is another matter entirely.

2. The Link with “Ethnic Cleansing”

In examining any potential case of widespread and/or systematic deportation or


forcible transfer of population, the spectre of ethnic cleansing inevitably looms large: it
is the elephant in the room so to speak.124 Before commenting on the wisdom of
applying such a label to the situation of the Rohingyas, it is first important to get a clear
idea of the development and international legal value of the term “ethnic cleansing”.

In the Simić case before the Yugoslav Tribunal, the Trial Chamber made the
largely isolated remark that, ‘both deportation and forcible transfer are closely linked to
the concept of “ethnic cleansing”’.125 In terms of the specific application of the term, it
has typically been ‘used to describe the policies…pursued by the various parties to the
Yugoslav conflict aimed at creating ethnically homogenous territories’,126 and despite its
absence from the Genocide Convention of 1948, the term has frequently been referred

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122 Smith, supra note 27.
123 Guiding Principles on Internal Displacement, supra note 121.
124 For an overview of ethnic cleansing see generally, W. A. Schabas, Genocide in International Law: The

Crime of Crimes (Cambridge. Cambridge University Press, 2edn. 2009) at 221-234.


125 Simić et al., Trial Judgment, supra note 92 at para. 130.
126 Schabas, supra note 124 at 221.

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to as a form of, or euphemism for, genocide.127 However, it is now generally accepted


that there is no basis for the inclusion of ethnic cleansing as a form of prohibited
conduct under Article II of the Genocide Convention. As the Trial Chamber in the Stakić
case held, ‘a clear distinction must be drawn between physical destruction and mere
dissolution of a group’.128

Until recently the definition of the term was the subject of significant debate;
however, the judgment of the International Court of Justice (ICJ) in Bosnia and
Herzegovina v. Serbia and Montenegro case appears to have settled the issue.129 Here the
ICJ adopted the definition originally proposed in 1992 by the Security Council’s
Commission of Experts on violations of humanitarian law during the Yugoslav conflict,
which states: ‘“ethnic cleansing” means rendering an area ethnically homogenous by
using force or intimidation to remove persons of given groups from the area’. This
definition reaffirms the apparent consensus that the substantive difference between
ethnic cleansing and genocide is the intent underlying the act: ethnic cleansing seeks to
simply remove the group (by means of forced displacement), while genocide is intent on
destroying the group in whole or in part.130 There are numerous examples of incidences
of ethnic cleansing spread throughout the jurisprudence of the Yugoslav Tribunal. The
Brđanin case is a textbook example and it is worth looking at a couple of the relevant
paragraphs of the Trial Judgment in order to get a sense of what is entailed in an act of
ethnic cleansing:

The Trial Chamber is satisfied beyond reasonable doubt both that the expulsions
and forcible removals were systematic throughout the [Autonomous Region of
Krijina], in which and from where tens of thousands of Bosnian Muslims and
Bosnian Croats were permanently displaced, and that this mass forcible
displacement was intended to ensure the ethnic cleansing of the region. These
people were left with no option but to escape. Those who were not expelled and
did not manage to escape were subjected to intolerable living conditions
imposed by Bosnian Serb authorities, and which made it impossible for them to
continue living there and then to seek permission to leave. Bosnian Muslims and
Bosnian Croats were subjected to movement restrictions, as well as perilous
living conditions; they were required to pledge their loyalty to the Bosnian Serb
authorities and, in at least one case, to wear white armbands. They were
dismissed from their jobs and stripped of their health insurance. Campaigns of
intimidation specifically targeting Bosnian Muslims and Bosnian Croats were

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127 See: D. Petrovic, ‘Ethnic Cleansing – An Attempt at Methodology’, (1994) 5 European Journal of
International Law 342; and L.L. Bruun, ‘Beyond the 1948 Convention – Emerging Principles of Genocide in
Customary International Law’, (1993) 17 Maryland Journal of International Law and Trade 193.
128 Prosecutor v. Stakić, (Trial Judgment) IT-97-24-T (31 July 2003) at para. 519. That is not to say that

should the requisite intent to destroy the group be present that a situation of ethnic cleansing could not
be said to rise to the level of an act of genocide – see Brđanin, Trial Judgment, supra note 107 at para. 977.
129 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), (Judgment) 26, February 2007 at para. 190.
130 The ICJ explained the distinction in the following manner: ‘Neither the intent, as a matter of policy, to

render the area “ethnically homogeneous”, nor the operations that may be carried out to implement such
policy, can as such be designated as genocide: the intent that characterizes genocide is “to destroy, in
whole or in part” a particular group, and deportation or displacement of members of a group, even if
effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an
automatic consequence of the displacement’. Ibid., at para. 190.

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undertaken…This process of “ethnic cleansing” was sometimes camouflaged as a


process of resettlement of populations.131

It is difficult not to notice certain factual similarities linking the Brđanin case and
the situation of the Rohingyas outlined in this chapter. However, attaching the label of
“ethnic cleansing” is of more benefit from an advocacy perspective than from an
international criminal law perspective. In fact, it is worth noting that the term does not
appear anywhere in the Rome Statute or in the Elements of Crimes. Describing a
situation as ethnic cleansing conjures up images of the worst excesses of modern
history. There is no doubt that the Rohingyas are the victims of gross and systematic
human rights violations, but whether attaching the essentially emotive and legally
questionable term “ethnic cleansing” to their plight will necessarily result in greater
awareness is questionable. Based on the evidence available, there is certainly a prima
facie case of deportation and forcible transfer. Since at least 1978, the SPDC have
persistently tampered with the ethnic make-up of the region. However, it cannot be said
with any degree of certainty that the intent behind such actions is to ethnically cleanse
North Arakan State. Further investigations by competent bodies may very well reveal
that it is the intent, but such a conclusion is beyond the scope of this Report.

C. Preliminary Conclusions

This chapter has illustrated that generations of Rohingyas have endured repeated
incidences of systematic forced displacement, which most dramatically manifested
themselves in periods of mass exodus from North Arakan State in 1978 and again in
1992. At the core of this forced displacement has been the persistent refusal of
successive Burmese regimes to recognize Rohingya citizenship. With the passing of the
inherently and deliberately discriminatory 1982 Citizenship Law, the Rohingyas were
reduced to a stateless status. One of the most startling consequences of this is that since
1994, newborn Rohingyas have not been provided with birth certificates or any other
form of documentation, creating a situation whereby, as far the Burmese legal system is
concerned, they do not exist. The wholesale denial of citizenship has been used as a tool
by which to bring about intolerably coercive conditions which have left large numbers
of Rohingya civilians with no option but to flee their homes. Aside from the creation of a
coercive environment the SPDC have also used actual physical force to remove whole
Rohingya communities and forcibly relocate them in the northernmost portions of the
region (i.e. on the northern outskirts of Maungdaw and Buthidaung townships). Such
relocations are violent and frequently result in fatalities. The Land Nationalization Act
of 1953 has been used as an excuse to arbitrarily confiscate Rohingya land for the use of
the military or for the construction of so-called model villages. The heightened
militarization of the region since 1994, most visibly illustrated by the establishment of
the now notorious NaSaKa border administration force is indicative of the SPDC’s
determination to fully control and dominate all aspects of Rohingya society. The
construction of model villages, a practice common to a number of Burmese States, is a
particularly troubling example of apparent attempts to physically alter the ethnic make-
up of North Arakan State. Official statements to the effect that such projects are in the
interests of societal diversity conceal the true intent which is to quell dissent and
disrupt ethnic unity.
___________________________________________________________________________
131 Brđanin, Trial Judgment, supra note 107 at paras. 551-552.

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In the Simić case the Trial Chamber of the Yugoslav Tribunal stated that a civilian
is involuntarily displaced if he or she is ‘not faced with a genuine choice as to whether to
leave or to remain in the area’.132 This is certainly the case with respect to the many
thousands of Rohingyas who, having fled North Arakan State with the acquiescence of
the NaSaKa, now find themselves in the precarious position of being non-registered
refugees in the Cox’s Bazar region of Bangladesh. These individuals are not economic
migrants but rather prima facie victims of the crime against humanity of deportation.
Likewise the thousands who have been forced from their land but who remain in the
region are not “foreigners” without standing under Burmese law, but individuals
collectively and arbitrarily denied citizenship and are prima facie victims of forcible
transfer. As discussed above, the authors of this Report believe that with further
investigation a solid case pointing to the widespread and systematic commission of the
crimes against humanity of deportation and forcible transfer of population would be
made. Whether the situation in fact amounts to ethnic cleansing is a conclusion to be
reached by an institution enjoying the unconditional support of the international
community.

___________________________________________________________________________
132 Simić et al., Trial Judgment, supra note 92 at para. 125.

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Chapter VII:
Persecution

Letter to All Heads of Missions and Consular


Corps in Hong Kong and Macau SAR,
9 February 2009

“In reality Rohingya are neither “Myanmar


People” nor Myanmar’s ethnic group. You
will see in the photos that their complexion
is “dark brown”. The complexion of
Myanmar people is fair and soft good
looking as well. (My complexion is a typical
genuine one of a Myanmar gentleman and
you will accept that how handsome your
colleague Mr. Ye is.) It is quite different
from what you have seen and read in the
papers. (They are as ugly as ogres.)”

Ye Myint Aung
Consul-General of Myanmar in Hong Kong

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VII. PERSECUTION

Introduction

Thus far, the acts committed against the Rohingyas, all of which clearly violate the most
basic norms of international human rights and international criminal law, have been
largely considered in isolation, i.e., outside of a wider cumulative context. While this
Report has documented individual patterns of conduct within the crimes against
humanity framework, up to this point it has avoided assigning a catch-all label which
may be used to describe the nature of the acts committed against the Rohingyas. This
chapter, in adopting a cumulative analysis of the foregoing chapters, addresses whether
or not the policies and actions of the SPDC with respect to the Rohingyas amount to the
crime against humanity of persecution. The identification of a persecutory scenario (as
per international criminal law), as we shall see, is dependent on a number of factors, the
most crucial of which is the existence of specific discriminatory intent. In this respect it
is important to bear in mind the wording of Article 7(2)(g) of the Rome Statute, which
states that persecution ‘means the intentional and severe deprivation of fundamental
rights contrary to international law by reason of the identity of the group or
collectivity’.1 Therefore the conduct documented in this Report may be considered
persecutory if it can be shown that the Rohingyas were targeted on inherently
discriminatory grounds. The addition of the discriminatory intent requirement sets
persecution aside from the other categories of crimes against humanity.2

Section A of this chapter very briefly places the findings of the foregoing chapters
within the context of the crime against humanity of persecution and will in addition
consider the following categories of alleged conduct under this contextual heading: (i)
arbitrary detention and other forms of severe deprivation of physical liberty, (ii)
torture, (iii) murder, and (iv) other inhumane acts. Section B provides an outline of the
applicable law with respect to each of the sub-sections and also of the general
persecutory framework. Section C offers some conclusions relating to the existence of a
prima facie case for the crime of persecution.

A. Factual Findings

1. The Fundamentally Discriminatory Basis of Documented Violations: Placing


Forced Labour, Rape and Forcible Transfer in a Persecutory Context

The purpose of this short section is not to needlessly restate the factual findings of
previous chapters on forced labour, rape and sexual violence, and forcible displacement,
which are based upon the Irish Centre for Human Rights’ field mission and a range of
other sources, but rather to reiterate the more significant point that the Rohingyas are
the target for such treatment as a consequence of their ethnic, racial and religious make-
up. The conclusions of the foregoing chapters should clearly confirm this.

___________________________________________________________________________
1 Rome Statute of the International Criminal Court (1998), U.N. Doc. A/CONF.183/9, entered into force 1
July 2002, 2187 UNTS 90, [hereinafter Rome Statute] at art. 7(2)(g).
2 Prosecution v. Kupreškić et al., (IT-95-16-T) Trial Judgment (14 January 2000) at para.636.

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In chapter IV, forced labour was examined in the context both of its prevalence
throughout Burma generally and then specifically with respect to the extent to which
the Rohingyas are exposed to it in North Arakan State. The factual findings reveal that
while the use of forced labour is a specific (if unexpressed) policy of the SPDC, its
exaction in North Arakan State disproportionately affects the Rohingyas. This is
apparent when the number of Rohingya victims of forced labour is compared with the
number of Buddhist Rakhine victims as a percentage of population. The findings of the
chapter can only be interpreted as a clear illustration of the discriminatory targeting of
Rohingyas. The denial of the right of citizenship as documented in chapter 5
(deportation and forcible transfer) is both the principal embodiment of discrimination
against the Rohingyas and the main catalyst for broader violations of Article 7 of the
Rome Statute. As discussed at length in chapter VI, Rohingya statelessness is
precipitated by ethnic, racial and religious discrimination. Their effective status as non-
citizens provides the SPDC with the perfect excuse to deny fundamental rights such as
freedom of movement, freedom of expression, as well as access to healthcare, education
and a decent standard of living. It has been shown that the level of discrimination is
such that day-to-day living conditions are made intolerable, to the extent that, over the
course of the past 30 years, hundreds of thousands of Rohingyas have been left with no
option but to seek refuge in nearby Bangladesh. The prima facie discriminatory intent
with which these acts have been pursued, coupled with their widespread and
systematic nature, points to the commission of the crime against humanity of
persecution.

The following section examines some additional violations of fundamental rights


that have not been considered elsewhere in this Report. The gravity of these violations
is such that, in and of themselves, they reach the threshold of internationally criminal
persecutory conduct.

2. Arbitrary Detention, Torture, Murder and Other Inhumane Acts as Enumerated


under Article 7 of the Rome Statute

At the outset, it is reasonable to suggest that this subsection’s express focus on four
categories of what in normal parlance might be referred to as extreme conduct is a little
excessive and all-embracing. However, the simple fact of the matter is that it is rare that
any one such act will be perpetrated in isolation. All are enumerated acts which –
provided the general requirements for the offence are fulfilled – may constitute crimes
against humanity under Article 7 of the Rome Statute, and with the additional presence
of discriminatory intent may amount to the crime against humanity of persecution.3

For a regrettably long time, acts of arbitrary detention, torture and other forms
of ill-treatment have been acknowledged as a common occurrence in the day-to-day
lives of ethnic minorities in Burma.4 In this respect Amnesty International has gone as
far as to declare that:

___________________________________________________________________________
3 Rome Statute, supra note 1 at arts. 7(1)(a) [Murder], 7(1)(e) [Imprisonment or other severe deprivation
of physical liberty in violation of fundamental rules of international law], 7(1)(g) [Torture], and 7(1)(k)
[Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body
or to mental or physical health].
4 Amnesty International (AI), ‘Myanmar: The Institution of Torture’, ASA 16/24/00 (December 2000) at 1.

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Torture and ill-treatment have become institutionalized in Myanmar. Patterns of


torture have remained the same, although the time and place vary. Torture
occurs throughout the country and has been reported for over four decades.
Members of the security forces continue to use torture as a means of extracting
information; to punish political prisoners and members of ethnic minorities; and
as a means of instilling fear in anyone critical of the military government. 5

Instances of torture or cruel and inhuman treatment will typically occur while an
individual is being detained by a branch of the Burmese security services or is in a
forced labour scenario. All too frequently such instances will lead directly to the death
of the victim.6 Examples of such eventualities with respect to members of the Rohingya
community have been documented for almost two decades now. In his report of
December 1992, former Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, Bacre Waly Ndiaye, highlighted the Rohingya experience:

Several reports concerned gross human rights violations committed by the


Myanmar security forces against Muslims in Rakhine (Arakan) State, also
referred to as Rohingyas, in what was described as a general pattern of
repression against religious or ethnic minority groups. Numerous extrajudicial,
summary or arbitrary executions were said to take place in the context of forced
labour. Members of minority groups are reportedly taken for porter duty by the
military, either as punishment for suspected involvement with armed
insurgencies or simply at random. While on duty, they are said to be subjected
to severe ill-treatment including deprivation of food, water and sleep, beating
with bamboo sticks and rifle butts, kicking with heavy boots, burning with
cigarettes or slashing with bayonets. When as a consequence of hard work
under such conditions, they fall ill or become too weak to work they are
reportedly killed by the military of simply left to die. The Special Rapporteur
also received reports about deaths in military custody due to torture and ill-
treatment.7

Indeed, such details have been a common feature of the reports of successive Special
Rapporteurs on the Situation of Human Rights in Myanmar:

For the last six years, the Special Rapporteur has received numerous reports
concerning arbitrary arrests without warrants, incommunicado detention,
torture or ill-treatment in pre-trial detention, deaths in custody and very poor
conditions of detention without access to adequate food and medical treatment.
He has also received reports of defendants who have been denied the right to
legal counsel and reports of political trials often being held in camera…The
Special Rapporteur has received many allegations of villagers being severely
punished outside the framework of the law because they refused to perform
forced labour …8

___________________________________________________________________________
5 Ibid.
6 See, General Assembly, ‘Situation of Human Rights in Myanmar – Note by the Secretary-General –
Interim Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, Yozo Yokota’, UN
Doc. A/49/594 (1994) at 6: ‘Many other similar situations include allegations of such severe torture that
the victims died as a result’.
7 Commission on Human Rights, ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special

Rapporteur, Mr Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights Resolution
1992/72’, UN Doc. E/CN.4/1993/46 (1992) at para. 432.
8 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in Myanmar,

Paulo Sérgio Pinheiro’, UN Doc. A/HRC/4/14 (2007) at paras. 48 and 50.

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For almost twenty years, the United Nations General Assembly has urged ‘the
Government of Myanmar to ensure full respect for…the rights of persons belonging to
ethnic and religious minorities, and to put an end…to the practices of torture,
disappearances and summary executions’.9 Despite these repeated appeals such modes
of conduct continue to be perpetrated with almost complete impunity, ultimately
resulting in the accelerated erosion or deterioration of fundamental standards of human
rights across Burma. The objective of this sub-section is to provide a general account of
the widespread and systematic commission of acts of this nature in North Arakan State
as gleaned from the field mission, while also establishing a prima facie case that the
Rohingyas are the specific and discriminatory target for such conduct.

2.1 Arbitrary Detention or other Severe Deprivations of Physical Liberty in North


Arakan State

It should be evident at this stage that gross human rights violations are to some degree
committed against all communities of North Arakan State, which, aside from the
Rohingyas, are comprised inter alia of Buddhist Rakhines, Muslim Rakhines – as distinct
from Rohingyas – and Hindu Rakhines. However, the objective of this chapter (and
indeed of this Report more generally) is to illustrate that the SPDC specifically targets
the Rohingyas for abuse because of their ethnic, racial and religious status/make-up.

Since 1962, the Burmese Government has developed a large and complex maze
of legislation which is followed or disregarded on an arbitrary basis.10 The objective of
the SPDC (and SLORC before them) is to be in a position to strictly monitor and control
the day-to-day activities of ordinary individuals, thereby reifying a situation of complete
State-sponsored oppression. In effect the criminal justice system is used as a powerful
weapon of discrimination.11 While the authorities may wish to give the appearance of
what might be described as a rule of law framework, in truth it is clear to all observers
that this is a sham. The stark reality is that throughout Burma individuals continue to be
arrested on the basis of the personal whim of authority figures, which can at times be

___________________________________________________________________________
9 ‘Situation of Human Rights in Myanmar’ UN Doc. A/RES/ 50/194 (1996) at para. 11. See also: ‘Situation
in Myanmar’, UN Doc. A/RES/47/144 (1993) at para. 6; ‘Situation of Human Rights in Myanmar’, UN Doc.
A/RES/48/150 (1994) at para. 7; ‘Situation of Human Rights in Myanmar’, UN Doc. A/RES/49/197
(1995) at para. 11; ‘Situation of Human Rights in Myanmar’, UN Doc. A/RES/50/194 (1996) at para. 11;
‘Situation of Human Rights in Myanmar’, UN Doc. A/RES/51/117 (1997) at para. 11; ‘Situation of Human
Rights in Myanmar’, UN Doc. A/RES/52/137 (1998) at para. 12; ‘Situation of Human Rights in Myanmar’,
UN Doc. A/RES/53/162 (1999) at para. 10; ‘Situation of Human Rights in Myanmar’, UN Doc.
A/RES/55/112 (2001) at para. 14; ‘Situation of Human Rights in Myanmar’, UN Doc. A/RES/56/231
(2002) at para. 4; ‘Situation of Human Rights in Myanmar’, UN Doc. A/RES/60/233 (2006) at para. 2(a);
‘Situation of Human Rights in Myanmar’, UN Doc. A/RES/61/232 (2007) at para. 2(a); ‘Situation of
Human Rights in Myanmar’, UN Doc. A/RES/63/245 (2009) at para. 2(a).
10 See generally, Amnesty International (AI), ‘Myanmar: Travesties of Justice – Continued Misuse of the

Legal System’, ASA 16/29/2005. In March 2009, Special Rapporteur on the Situation of Human Rights in
Myanmar, Tomás Ojea Quintana ‘recommended that the Government of Myanmar start reviewing and
amending domestic laws that limit fundamental rights and contravene…international human rights
standards’ - Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in
Myanmar, Tomás Ojea Quintana’, UN Doc. A/HRC/10/19 (2009) at paras. 89-90.
11 Document G-01 (on file with authors). A confidential source has documented a number of cases in

North Arakan State where a number of individuals were sentenced to long prison sentences for minor
crimes or non-crimes, such as unauthorized marriage or illicit relationships.

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linked to situations of personal retribution.12 Such instances have been documented and
investigated by the United Nations Working Group on Arbitrary Detention (‘the
Working Group’). In its submission to the United Nations Human Rights Council in 2007,
the Working Group presented its findings in relation to the conviction and detention of
National League for Democracy (NLD) member Su Su Nway.13 In 2005, Su Su Nway
successfully sued the local authorities in Htan Manaing Village, Kawmoo Township,
Rangoon Division for their forced labour practices. Needless to say, this was the first
time such a case was brought to court and won by a plaintiff. In the immediate
aftermath of this action, Su Su Nway was severely harassed by local authorities, and
within three months of the judgment was arrested and convicted of besmearing the
reputation of the village authorities pursuant to Articles 506 and 294B of the Myanmar
Penal Code. She was sentenced to 18 months imprisonment.14 The Working Group
found that the conviction was essentially politically motivated: ‘[T]he criminal offences
[charged] against Ms. Su Su Nway – besmearing the reputation of, and swearing at the
authorities – are, in the absence of any convincing argument by the Government to the
contrary, indicative of the intention of the Government to unduly restrict the freedom of
opinion and expression of someone who dared to take an action against the authorities
of the State’.15 Su Su Nway is but one of an estimated 2,100 prisoners of conscience
detained throughout Burma. 16

Unsurprisingly, prominent members of the NLD are amongst the most obvious
targets for arbitrary detention; however such action extends to all those attempting to
oppose the SPDC by whatever means.17 Politically active Rohingyas are certainly no
exception. For example, in 2005, Amnesty International reported the arrest of U Kyaw
Min, a member of the Rohingya-controlled National Democratic Party for Human Rights
who was elected MP for Bauthidaung in the 1990 national elections. Following a trial
held in secret, he was sentenced to 47 years’ imprisonment for allegedly attempting to
fabricate citizenship documentation. Shortly after his conviction U Kyaw Min’s wife, two
daughters and son were arrested and sentenced to 17 years’ imprisonment, presumably
on similar charges.18 It is clear that the NaSaKa and police forces operating in North
Arakan State utilize the non-citizenship status of the Rohingyas as a basis for arbitrary
detention. As outlined in the previous chapter on deportation and forcible transfer, the
Rohingyas’ non-citizens status is exploited by the local authorities as a means of placing
significant constraints (through the imposition of a strict travel permit regime) on their

___________________________________________________________________________
12 National Coalition Government of the Union of Burma (NCGUB), Burma Human Rights Yearbook 2008
(2009), available at
http://www.ncgub.net/NCGUB/mediagallery/downloadc516.pdf?mid=20091123192152709, at 35.
13 Human Rights Council, ‘Opinions adopted by the Working Group on Arbitrary Detention’, UN Doc.

A/HRC/4/40/Add.1 (2007) at 50-51.


14 Ibid.
15 Ibid., at 51. Some four years after her conviction Su Su Nway remains incarcerated.
16 Amnesty International (AI), ‘Daw Aung San Suu Kyi and Myanmar’s Political Prisoners’, Appeal for

Action, 27 July 2009, available at http://www.amnesty.org/en/appeals-for-action/daw-aung-san-suu-


kyi-and-myanmars-political-prisoners. See also, Human Rights Council, ‘Report of the Special Rapporteur
on the Situation of Human Rights in Myanmar, Tomás Ojea Quintana’, supra note 10 at para. 21.
17 See AI, supra note 10 at 14.
18 Ibid., at 14. See also, Free Burma’s Political Prisoners Now, ‘Political Prisoner Profile – U Kyaw Min’ (30

December 2009) available at www.fbppn.net/wp-content/uploads/.../Kyaw-Min-MP-_30-Dec-2009_.pdf .


For examples of other Rohingyan civil society figures that have been detained in recent years see, NCGUB,
supra note 12 at 54.

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freedom of movement. There are numerous documented incidents of Rohingyas being


detained for travelling without the permits specified in Sections 10 and 12 of the 1864
Foreigners Act (amended in 1940).19 The authorities frequently detain or charge
Rohingyas who have travelled without authorization under Section 5(j) of the 1950
Emergency Provisions Act which states that:

Whoever does anything with any of the following intent; that is to say:
(j) to affect the morality or conduct of the public or a group of people in a way
that would undermine the security of the Union or the restoration of law and
order….[will be liable for criminal prosecution]. 20

The invocation of this particular legislation suggests that the SPDC believes that the free
movement of Rohingyas within North Arakan State constitutes a genuine threat to
national security. On this particular matter Amnesty International has commented that

The 1950 Emergency Provisions Act, section 5(j) does not use precise criteria to
determine what constitutes a threat to national security. Amnesty International
is concerned that, in the court judgments it has seen, sentences have been
handed down solely on the basis of travelling without a permit, and that this
would not constitute an adequate justification to condemn individuals on the
basis that their actions threaten state security…Amnesty International believes
that Rohingyas imprisoned solely for travelling without official permission are
being punished in a discriminatory and arbitrary fashion.21

The arbitrary detention of Rohingyas political activists is merely the tip of the
iceberg. While the detention of potentially disruptive voices is, on the basis of its
undoubtedly systematic nature, an inherently political act and on the face of it may be
pursued as an explicit policy of central government, the vast majority of cases of
arbitrary detention in North Arakan State are in fact opportunist, with issues of motive
boiling down to systematic ethnic, racial and religious discrimination. The extent and
modality of arbitrary detention in North Arakan State is such that it may be described as
having reached industrial proportions in so far as there is a definite pattern to the way
in which typical instances of arbitrary arrest and detention will play out.

It is evident from the interviews conducted during the field mission that
arbitrary arrest and detention in North Arakan State is as much about extortion as it is
about imprisonment. It is not unusual for a Rohingya male to be repeatedly arrested on
fabricated charges such as forgery of citizenship application documents, travelling
without an appropriate permit, being married without permission, or failure to comply
with a forced labour order, only for those charges to be dropped on payment of a bribe
to the detaining authority.22 Indeed, numerous situations were recorded during the field
___________________________________________________________________________
19 See Chapter VI (Deportation or Forcible Transfer of Population).
20 Emergency Provisions Act [Burma Act 17], (9 March 1950) at Section 5(j). Text available at
http://www.burmalibrary.org/docs6/Section_5_of_the_Emergency_Provisions_Act-en.pdf. Further
detention also take place when Rohingyas visit Bangladesh and come back to Burma without the
appropriate documentation or permission. These individuals are detained following Section 13 of the
Burma Immigration Act. The Arakan Project indicates that this provision is usually only applied in Burma
on groups such as political activists, but systematically on the Rohingya minority group. See C. Lewa, The
Arakan Project (Document P-02, on file with authors).
21AI, supra note 10 at 18.
22 Irish Centre for Human Rights, Bangladesh Fact-Finding Mission 2009, testimonies [hereinafter

Bangladesh testimonies]: M27-B-1 [Payment of bribe for marriage permission]; M1-B-2 [Imprisonment

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mission in which individual Rohingyas were simply arrested at random and held by the
NaSaKa without grounds of any sort, based on false accusations or fabricated evidence,
until release was secured by the payment of a bribe. Such detentions are arbitrary in the
true meaning of the word and have the effect of instilling a sense in the Rohingya
community that they may be arrested and detained at any time.

The industrial character of arbitrary arrest and detention is enhanced by the fact
that the security forces (be they NaSaKa, police or the army) are not the only players in
the system. In many instances there exists a third tier, occupied by “independent”
brokers who operate outside of the security infrastructure and are usually Rohingyas
who may be in positions of authority (such as VPDC Chairmen). They offer a “service” to
both the detainer and the (potential) detainee, facilitating both the extraction and
payment of bribes.23 Brokers often assume an informant role, relaying to the NaSaKa the
potentially exploitable activities of the local population. Should the NaSaKa choose to
act on this information, the broker will approach the individual(s) in question and
inform them that unless they pay a predetermined sum of money to the authorities they
will be arrested with a view to subsequent prosecution. In many cases the accused will
agree to pay the bribe through the broker, plus a fee to the broker for his service. By
doing so, they are essentially paying a fee for their liberty and in order to stay the
inevitable infliction of violence on their person. The security forces profit by obtaining
guaranteed bribes with a minimum of effort. In other instances, the individuals
themselves will approach the broker with a view to negotiating a bribe on their behalf,
be it to avoid a period of forced labour or to obtain a travel permit or marriage
permission etc. Brokers are figures of hate within their community.24 However, it is not
difficult to see how the industrial extraction of bribes significantly supplements the net
earnings of the security forces and of the brokers prepared to take on this position. The
bribe system will be returned to below when examined in the context of arbitrary
taxation.

It is worth emphasizing once again that this Report does not wish to suggest that
it is only the Rohingyas who are the victims of this system in North Arakan State.
However, it is argued that the Rohingyas are singled out for more extreme treatment.
Looking at the nature of the charges brought, the legislation cited, and the sheer volume
of cases (based on results other than those arising from the field mission), it is clear that
the Rohingyas are specially targeted for arbitrary arrest and detention on the basis of
their non-citizenship status, which itself is the result of ethnic, racial and religious
discrimination. In short, there would appear to be clear grounds for concluding that this
constitutes evidence of discriminatory intent, an essential element of the crime against
humanity of persecution.

for failure to provide labour and marriage permission regime]; M1-B-3 [Imprisonment for possession of
“illegal” identity papers]; M26-C-1 [Imprisonment for failure to comply with forced labour order]. All of
these examples involved the payment of bribes.
23 Ibid., at M2-B-3.
24 Ibid.

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2.2 Infliction of Torture and other Forms of Inhuman or Degrading Treatment or


Punishment on the Rohingyas

The conditions of detention and the general treatment of detained Rohingyas is an issue
of significant concern. Such concern is also of particular relevance within the context of
the exaction of forced labour.25 The use of torture and other forms of extreme violence
which in many instances result in the death of the victim is an all-too-frequent
occurrence in North Arakan State. The absence of any semblance of the rule of law has
established a culture of complete impunity which extends across Burma. Former Special
Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Asma Jahangir,
commented in 1999 with respect to Burma that she was ‘deeply dismayed by the large
number of allegations of the violation of the right to life by State actors which she
continues to receive’, and found ‘the impunity enjoyed by these persons most abhorrent’.26
She also noted that ‘many of the deaths reported occurred owing to alleged portering,
forced relocations, and violence against women’.27

This Section opened with the declaration that the torture and infliction of
inhuman treatment or punishment on ordinary civilians is a widespread and systematic
daily reality throughout Burma. The field investigation undertaken by the Irish Centre
for Human Rights clearly illustrates that this statement holds firmly with regard to the
specific situation of the Rohingyas. Indeed, few interviews failed to include an account
of treatment which, from an international criminal and international human rights law
perspective, prima facie amounts to torture or other inhuman or degrading treatment or
punishment. For example a Rohingya woman interviewed recounted how her father
was detained for questioning after challenging a VPDC land confiscation order and was
subjected to extreme torture which took the form of having boiling water poured over
his face and down his nostrils.28 The woman also explained that her father subsequently
died from his injuries.29 Similar accounts are alarmingly common, as are instances of
random beatings while in detention30, during periods of forced labour31, or simply when
encountering members of the security forces on a day-to-day basis.32 It is important also
to bear in mind the particular exposure of female detainees to rape and other forms of
sexual violence as outlined in chapter V.33 The Rohingyas are clearly targeted for such
violence and abuse on account of their ethnic minority status.

___________________________________________________________________________
25 See Chapter IV (Enlavement – Forced Labour).
26 Commission on Human Rights, ‘Extrajudicial, Summary or Arbitrary Executions: Report of the Special
Rapporteur, Ms. Asma Jahangir, submitted pursuant to Commission on Human Rights Resolution
1998/68’, UN Doc. E/CN.4/1999/39/Add.1 at para. 168 [emphasis added].
27 Ibid.
28 Bangladesh testimonies, supra note 22: M26-C-6.
29 Ibid.
30 Ibid., M2-B-3.
31 See Chapter IV (Enslavement – Forced Labour).
32 Bangladesh testimonies, supra note 22: M1-B-4. See also, Amnesty International (AI), ‘Union of

Myanmar (Burma) – Human Rights Violations against Muslims in the Rakhine (Arakan) State’, ASA
16/06/92 at 15: ‘Muslims are ill-treated if they attempted to protest when the security forces attacked
other Muslims, if they objected on their own behalf, if they were suspected of opposing the SLORC, and
sometimes for no apparent reason at all’.
33 See also, Amnesty International (AI), ‘Myanmar: Torture of Ethnic Minority Women’, ASA

16/017/2001.

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The prevalence of torture, general violence and mistreatment must also be


considered in light of the actual physical conditions of detention. For many years,
Amnesty International and the International Committee of the Red Cross have
highlighted the grossly substandard condition of Burma’s prisons.34 Aside from the
common failure of prison authorities to provide adequate food, water or medical
facilities, detainees will often be held incommunicado for long periods (which may be
accompanied by shackling) or will be forced into extremely overcrowded cells which
lack bedding of any kind.35 In chapter IV, the conditions under which forced labour is
typically exacted were examined in some detail. Prolonged periods of forced labour (i.e.
for several days in a row) in which individuals are separated from their homes and
families constitute situations of de facto detention. It is in such circumstances that the
vast majority of Rohingya victims encounter torture, inhuman or degrading treatment
or punishment, taking the various forms of rape, sexual assault, and common assault.36
Other ethnic groups in North Arakan State do not appear to experience such conditions
on remotely the same scale as the Rohingyas. Each chapter of this Report has illustrated
the fact that the Rohingyas are systematically targeted on the basis of their ethnic, racial
and religious status. As the previous sub-section on arbitrary detention has shown, the
denial of citizenship to the Rohingyas provides the local authorities (be they NaSaKa,
army or police) with a ready-made strategy for oppression. Their employment of
torture and inhuman or degrading treatment or punishment is a central component of
an overall policy of deliberate persecution.

2.3 Murder

It is beyond the scope of this Report to pronounce on individual cases of murder or


unlawful death. However, it is sufficient to say that successive United Nations Special
Rapporteurs on Extrajudicial, Summary or Arbitrary Executions, as well as successive
Special Rapporteurs on the Situation of Human Rights in Myanmar, have highlighted the
extent to which individual civilians are arbitrarily or unlawfully deprived of their lives
at the hands of the State.37 In its 2008 annual report on human rights in Burma, the

___________________________________________________________________________
34 See International Committee of the Red Cross (ICRC), ‘Annual Report 2008: Myanmar’ (2009), available
at http://www.icrc.org/web/eng/siteeng0.nsf/html/annual-report-2008-myanmar!OpenDocument . It
should be noted that the ICRC have been denied access to Burma’s prisons since 2005; Amnesty
International (AI), ‘Myanmar: The Administration of Justice – Grave and Abiding Concerns’, ASA
16/001/2004; and AI, supra note 10. For an alternative excellent examination of Burma’s prison system
see: Assistance Association for Political Prisoners (Burma), ‘The Darkness We See: Torture in Burma’s
Interrogation Centres and Prisons’ (2005), available at http://www.aappb.org/.
35 See United States of America, Department of State, Bureau of Democracy, Human Rights, and Labour,

‘2008 Human Rights Report: Burma’, available at


http://www.state.gov/g/drl/rls/hrrpt/2008/eap/119035.htm: ‘Prison and labor camp conditions
generally were harsh and life threatening…Food, clothing, and medical supplies reportedly were scarce in
prisons. There were reports that authorities in some prisons forced prisoners to pay for food. Bedding
often was inadequate, sometimes consisting of a single mat on the floor…HIV/AIDS infection rate in
prisons reportedly were high due to communal use of syringes and sexual abuse of other prisoners.’
36 See Chapter IV (Enslavement – Forced Labour).
37 Human Rights Council, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary

Executions, Philip Alston: Addendum – Summary of Cases Transmitted to Government and Replies
Received’, UN Doc. A/HRC/8/3/Add.1 (2008) at 281-283; Commission on Human Rights, ‘Extrajudicial,
Summary or Arbitrary Executions: Report of the Special Rapporteur, Ms. Asma Jahangir, submitted
pursuant to Commission on Human Rights Resolution 1998/68’, UN Doc. E/CN.4/1999/39/Add.1 at
paras. 164-168; Commission on Human Rights, ‘Extrajudicial, Summary or Arbitrary Executions: Report

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United States Department of State noted that ‘[t]here were numerous reports that the
government or its agents committed arbitrary or unlawful killings. The Government did
not punish officials responsible for the deaths. In particular there were reports of
extrajudicial killings and custodial deaths’.38 During the course of the field investigation
for this Report, a number of accounts were provided of incidents in which agencies of
the SPDC, usually the NaSaKa, were allegedly responsible for the discriminate killing of
Rohingya resident in North Arakan State. Examples ranged from deaths resulting from
the use of live ammunition to disperse gatherings of Rohingyas,39 to individual accounts
of family members being beaten to death while performing forced labour. 40 The 2008
Burma Human Rights Yearbook, published by the Human Rights Documentation Unit
(HRDU) of the National Coalition Government of the Union of Burma (essentially
representing the exiled NLD government), documents many specific cases of the alleged
unlawful killing of Rohingyas.41 These cases are predominantly based on incidents
reported by such online Burma news agencies as Kaladan Press, Narinjara News (both of
whom focus on the situation in Arakan State), and Mizzima News, which rely on sources
within Burma and reports from those who have recently fled the country. 42 While the
exact details of these incidents are necessarily circumspect (given the difficulties
encountered in the gathering of concrete facts), it is nevertheless obvious from all
sources that discriminate killings are taking place in North Arakan State. They may be
referred to as discriminate simply because the vast majority of reported incidents
flowing out of Arakan State (for example, as highlighted by the HRDU) overwhelmingly
involve Rohingya victims.

The numbers of unlawful deaths in North Arakan State (which at times appear to
amount to extrajudicial, summary or arbitrary executions) are an inevitable
consequence of the ever increasing military presence in the region.43 Unsurprisingly,
the SPDC either denies any involvement in the unlawful killing of civilians, or seeks to
justify such actions on the basis of the “Four Cuts” policy, i.e., as being necessary for the
quelling of ethnic violence and unrest, carried out in the context of an armed conflict.
However, as with the instigation of acts of deportation or forcible transfer, such
defences (if they can be so described) do not apply to contemporary North Arakan
where organized armed resistance has been virtually non-existent since the mid-1990s.
In this respect the HRDU has commented that:

[D]uring 2008, as in previous years, Arakan State continued to endure


widespread militarization in spite of the absence of any armed conflict or
enemies on the nation’s borders. Rather, the sole occupation of the military is

by the Special Rapporteur, Mr. Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights
Res. 1994/82’, UN Doc. E/CN.4/1995/61; Human Rights Council, ‘Report of the Special Rapporteur on
the Situation of Human Rights in Myanmar, Tomás Ojea Quintana’, supra note 10 at paras. 96-97.
38 United States of America, Department of State, supra note 35. The report then immediately comments

on the alleged death in custody of Rohingya, Zawmir Uddin: ‘On February 21st, police in Akyab, Rakhine
State, severely beat Zawmir Uddin, a Rohingya who subsequently died in police custody’.
39 Bangladesh testimonies, supra note 22: M26-C-3.
40 Ibid., M26-C- 5; M26-C-8
41NCGUB, supra note 12 at 131-134.
42 See Kaladan Press at: http://www.kaladanpress.org/v3/index.php; Narinjana News at

http://www.narinjara.com/index.asp ; and Mizzima News (which deals with Burma generally) at:
http://www.mizzima.com/ .
43 See Chapter VI (Deportation or Forcible Transfer of Population) for a more detailed account of regional

militarization.

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the ongoing repression of the Muslim Rohingya ethnic minority group.


Throughout the year, this repression has resulted in numerous cases with the
death of the victim at the hands of the SPDC…Within Arakan State, the Rohingya
are confined to selected areas [i.e. North Arakan State] designated for Rohingya
settlement and their movement beyond, and even within, these areas is tightly
controlled by the SPDC. When caught outside of the areas which have been
designated for their settlement, often regardless of whether or not they hold the
correct documentation permitting them to travel, many Rohingya are shot on
sight while trading, searching for food or moving between villages. Meanwhile,
the Rohingya also face additional restrictions simply because of their differing
religious beliefs. For example, in one instance which took place on 31 May 2008,
two unidentified Rohingya villagers were shot and killed without cause or
provocation by NaSaKa personnel in a bamboo forest near the Bangladesh-
Burma border. After the shooting the SPDC army soldiers then took the bodies
and cremated them; in direct contravention of Muslim burial rites. 44

It is almost impossible to positively verify the factual circumstances of these reports


which are often based on anonymous hearsay accounts; however, their number is an
obvious cause for concern and demands further investigative attention. Impunity for
such acts is the order of the day across Burma. The absence of accountability and the
overall lawlessness (with respect to the treatment of ethnic minorities) afforded to the
various agencies of the SPDC gives rise to a factual void. We are aware of the fact that
ethnic minorities, and the Rohingyas specifically, are the victims of unlawful killings,
however, reliable data in terms of numbers is impossible to obtain. That said, it is
evident that unlawful deaths is an inevitable consequence of the SPDC’s determination
to disjoint the Rohingya community in North Arakan State. The implementation of the
“Four Cuts” and related policies in Arakan has almost inevitably resulted in the
intentional use of lethal force against civilian Rohingyas. Such force is deliberate,
discriminatory, and must be viewed as a constituent element in the commission of the
crime of persecution.

3. Other Acts Constituting the Discriminatory Denial of Fundamental Rights


Falling within the Scope of Article 7(i)(h) of the Rome Statute

As will be explored in more detail in Section B below, unenumerated conduct (i.e.


conduct not falling directly under any of the provisions of Article 7 of the Rome Statute
– murder, extermination, enslavement, deportation etc.) will be considered within the
ambit of the crime against humanity of persecution provided it involves the widespread
or systematic denial of a fundamental right on discriminatory grounds. In principle, the
acts in question must be of comparable gravity to enumerated acts under Article 7. The
following considers three issues which, it is submitted, rise to the level of persecution,
namely: restrictions on the right to marry [which has been largely neglected in the
literature to date], denial of freedom of religion, and the imposition of arbitrary taxation
in violation of the right to an adequate standard of living.

3.1 Marriage Restrictions Imposed on the Rohingyas

The Universal Declaration of Human Rights provides that: ‘Men and women of full age,
without any limitation due to race, nationality or religion, have the right to marry and to

___________________________________________________________________________
44 NCGUB, supra note 12 at 122 and 124.

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found a family.’45 In North Arakan State, the SPDC infringes upon and intentionally
deprives the Rohingyas of this right in a discriminatory manner, by imposing
restrictions and requiring that they obtain permission before marrying. Moreover,
severe punishments for not respecting these restrictions are imposed on the Rohingyas.
The impact of the marriage restrictions is often less well understood than other
violations but constitutes an insidious violation of human rights with far-reaching and
grave consequences. The field mission conducted for this Report has in fact revealed
that the current marriage restrictions and the severe consequences for non-compliance
are amongst the main reasons why Rohingyas flee North Arakan State.46

In Burma, areas such as marriage, divorce and inheritance, are almost exclusively
regulated by customary law. With the exception of mixed marriages, which are
regulated by special laws,47 marriages in Burma accordingly follow local traditions and
customs and should be valid without further official registration or legal
requirements.48 To be accepted as validly married, Buddhist and non-Buddhist couples
in Burma need to meet the requirements laid out in their own traditions. Basically,
Buddhist couples mainly need to consensually cohabit together and to have reached a
certain age to be accepted as lawfully married. 49 This long-standing tradition is based
on the perspective that ‘regardless of the means by which a young couple are brought
together, the marriage ties are social’,50 and that open cohabitation is sufficient to
symbolise and form a marriage in Burma. Hindu couples must perform marriages
following old Hindu law; Christians follow their own customs including getting married
in church; Muslims should marry following Islamic law. According to Islamic law,
Muslim weddings do not need official registration to be valid. The wedding (nikah)
ceremony is a private, contractual affair with no official presence necessary.

Until 1990, the Rohingyas could marry following their own tradition under
Islamic law with no need for further procedure or requirements, as was the convention
for all groups in Burma. In practice, this is no longer the case. The situation has changed
drastically for the Rohingyas since the 1990s, as the authorities issued a Local Order

___________________________________________________________________________
45 Universal Declaration of Human Rights (10 December 1948) GA Res 217A (III), UN Doc A/810, 71,
[hereinafter UDHR] at art. 16 (1).
46 Bangladesh testimonies on marriage restrictions, supra note 22: M27-A-1; F27-A-1; F27-A-5; F27-A-6;

F28-A-1; F1-A-4; M2-A-1; F2-A-1; F2-B2; M26-B-4; M7-B-1; M1-B-2; M2-B-3; M27-C-1; M27-C-3; M27-C-
4; M27-C-5.
47 See for instance Myanmar Women's Affairs Federation, ‘Rights of Myanmar Women Endowed by

Myanmar Customs and Traditions’, available at www.mwaf.org.mm/Activities/Paper%20Read/Eng8.pdf


at 5; SPDC, ‘Supreme Court clarifies racial inter-marriage’, available at
http://www.myanmar.gov.mm/myanmartimes/no29/supreme_court.htm; B. Bellak, Gathering Strenght:
Women from Burma on their Rights (Chiangmai, Images Asia, 2002), available at
http://www.burmalibrary.org/docs/Gathering_Strength.htm at 238.
48 ‘Combined second and third periodic reports of States parties, Myanmar’, UN Doc. CEDAW/C/MMR/3

(2007) at para. 69, 190; Bellak, ibid, at 238-239; SPDC, ibid. In practice, Buddhist couples in urban areas
are more frequently choosing to get married by court officials. In rural areas, however, this practice is
rather rare. As noted by Bellak, at 239: ‘Village headmen and quarter heads are empowered to register
marriages, but in many areas there is no written documentation.’ Regarding marriages in urban areas see
Ba Saing and Wai Phyo Myint, ‘No Glitz, no Glamour in Court Marriages’ Myanmar Times (7-13 June 2004),
available at http://www.myanmar.gov.mm/myanmartimes/no219/MyanmarTimes11-219/036.htm.
49 Myanmar Women's Affairs Federation, supra note 47 at 4.
50 Sein Tu, ‘Myanmar Marriage’, available at http://www.myanmar.gov.mm/Perspective/persp1998/3-

98/mar3-98.htm.

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compelling individuals in North Arakan State to seek and obtain permission prior to
getting married. While the Local Order did not indicate that the rule should apply only
to Rohingyas, the directive was issued to manage Muslim marriages, monitor or restrict
population growth in North Arakan State, and prevent anticipated problems such as
scarcity of land and resources which were perceived to be linked with the birth rate of
the Rohingyas. The Local Order was not backed up by any statutory act and was never
publicly distributed. In practice, the Order has only been implemented with respect to
the Muslims in North Arakan State and not any other ethnic groups.51

Information gathered by organisations since 1994, and by the fact-finding


mission undertaken for this Report, document the requirements included in the Order
and the procedure that must be met by Rohingyas to obtain marriage authorizations.52
To seek marriage permission, Rohingyas must first open a file at their VPDC. This is
done through payment of a fee accompanied by the submission of a number of
documents. The application must include (for instance) a statement indicating that the
couple will not have more than two children, and a promise that the boy or man will not
take more than one wife.53 To apply for marriage authorization, a couple is also
required to provide photos. In recent years, Rohingya girls have been forced to show
their entire face and boys to be clean-shaven when taking these pictures, both of which
are inappropriate practices in their culture.

Once the requirements have been met by the couple and the marriage
authorization file has been opened by the VPDC, the couple (often together with their
parents) submit their application in person to the local Sector Commander’s office of the
NaSaKa. Harassment and abuses frequently take place at this stage, and couples are
humiliated. Women are asked to remove their hijab or headscarf, and sometimes to
show or let NaSaKa officers touch their stomachs to verify that they are not pregnant.
Further physical abuses, sometimes including ones of a sexual nature, can also take
place.54 The fact-finding mission showed that abuses and arrests of family members,
especially fathers, are also common when the application is submitted to NaSaKa.55
While the procedure to seek marriage permission is officially said to be free, the field
mission confirmed that the application process is difficult and very costly. One refugee
stated that after paying a requested fee of 200,000 kyats for applying for the
___________________________________________________________________________
51 C. Lewa, The Arakan Project, ‘North Arakan: An Open Prison for the Rohingya in Burma’ Forced
Migration Review (April 2009), available at http://www.fmreview.org/FMRpdfs/FMR32/FMR32.pdf at
12; C. Lewa, The Arakan Project (Document MR-01, on file with authors); Document MR-02 (on file with
authors).
52 Bangladesh testimonies on marriage restrictions, supra note 46; Lewa, The Arakan Project (Document

MR-01), ibid.; Document MR-02, ibid; National Coalition Government of the Union of Burma, Burma
Human Rights Yearbook 2007 (2008), available at
http://www.ncgub.net/NCGUB/BHRY/2007/pdf/YB2007.pdf at 382, 698, 728; NCGUB, Burma Human
Rights Yearbook 2008, supra note 12 at 544.
53 This requirement of monogamy is particularly interesting given that Rohingya do practice polygamy,

that polygamy is permitted in Burma under Buddhist Customary law, but does not find wide support in
the Buddhist society. See for instance Myanmar Women's Affairs Federation, supra note 49 at 5; Bellak,
supra note 47at 243-244.
54 Bangladesh testimonies, supra note 22: F28-A-1.
55 Ibid., M27-A-1. For instance, one of the refugee interviewed in Bangladesh explained that he was beaten

and detained for 15 days after submitting a marriage application for his son. NaSaKa objected to the
potential marriage, and questioned the father on the reasons why his son wanted to marry a girl from a
richer family.

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permission, the NaSaKa in Buthidaung made him sign a declaration professing that he
did not pay anything for the process.56 Others have been told that if asked, to declare
that the money was given voluntarily. It has been reported and confirmed by the field
mission that the cost of the whole process can be anywhere between 30,000 and
450,000 kyats. Some individuals were also forced to give five gallons of petrol and one
cow.57 With a daily wage of 1500 kyats and the high level of poverty and unemployment
in North Arakan State, this cost represents a minimum of three months’ salary. In fact,
the cost of the process often exceeds what Rohingya couples can pay and due to this,
families commonly enter into debt to try to obtain marriage authorization.58 The fee is
not fixed and Rohingyas are repeatedly asked for bribes by different officers of the
VPDC and NaSaKa. Amongst the refugees interviewed for this Report, the parents of one
particular man explained that NaSaKa refused to give the permission to marry because
girl’s family was wealthier than the man’s.59 Many couples were refused permission on
the basis that they could not meet payment requests. This situation is a great burden for
the Rohingya community and contributes to poverty. Because of these obstacles many
Rohingyas are unable to marry.60 This and the fact that the financial burden has pushed
families to flee Burma were confirmed by the fact-finding mission.

NaSaKa is in charge of implementing the Local Order, dispensing marriage


authorizations, and punishing Rohingyas who get married without. In some areas,
marriage authorizations are processed and can be obtained within a few weeks. In
others, it can take more than a year, sometimes several years. The waiting periods
indicated by the refugees interviewed ranged from six months to three years. In 2005,
for instance, not a single marriage authorisation was issued for almost half a year. 61 The
authorities appear to have a yearly quota of marriage authorizations and some reports
have specified that NaSaKa authorizes only three Rohingya marriages per village every
year.62 The implementation of the Local Order is very inconsistent and can often depend
on which NaSaKa officers are on duty when a given couple go to the Sector Commander
Office to submit their application. Rohingyas are constantly victims of extortion on the
basis of the Local Order.

___________________________________________________________________________
56 Ibid., M2-B-3.
57 Bangladesh testimonies on marriage restrictions, supra note 46; Lewa, The Arakan Project (Document
MR-01), supra note 51; Document MR-02, supra note 51; Amnesty International (AI), ‘Myanmar, The
Rohingya Minority: Fundamental Rights Denied’ (2004), available at
http://www.amnesty.org/en/library/asset/ASA16/005/2004/en/9e8bb8db-d5d5-11dd-bb24-
1fb85fe8fa05/asa160052004en.pdf at 30.
58 NCGUB, supra note 12 at 838.
59 Bangladesh testimonies, supra note 22, testimonies M27-A-1; F27-A-1.
60 AI, supra note 57 at 30.
61 C. Lewa, The Arakan Project, ‘Issues to be Raised concerning the Situation of Stateless Rohingya Women

in Myanmar (Burma): Submission to the Committee on the Elimination of Discrimination against Women
(CEDAW)’ (2008), available at http://www.burmalibrary.org/docs6/CEDAW_Myanmar_AP_Submission-
Final-Web.pdf at 5; Lewa, supra note 51 at 12; C. Lewa, The Arakan Project, ‘Northern Arakan/Rakhine
State: a Chronic Emergency’, available at
http://www.eias.org/conferences/2006/burma290306/lewa.pdf at 1.
62 United States Commission on International Religious Freedom, Annual Report, available at

http://www.uscirf.gov/images/AR2009/final%20ar2009%20with%20cover.pdf at 18; NCGUB, Burma


Human Rights Yearbook 2008, supra note 12 at 922; NCGUB, Burma Human Rights Yearbook 2007, supra
note 52 at 382; AI, supra note 57 at 30.

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With the high cost, humiliation, length of time and frequent failure to obtain
marriage permission, some couples get married under Islamic law before obtaining the
official authorization. Sometimes marriages are even performed with the knowledge of
the VPDC or NaSaKa officers, who will turn a blind eye in exchange for regular bribes.
When caught, couples who are “illegally” married are often requested to give money to
the officials instead of being officially charged for violating the Local Order. 63 The same
system of bribes is also applied when couples or family members are arrested during
the submission of applications. In addition to infringing upon the right to marry and
found a family, the marriage restrictions imposed on the Rohingyas have many other
detrimental consequences. Difficulties in getting marriage permission, or marriage
without such authorization, also lead to unsafe abortions, and the “illegal” birth of
unregistered children. With pregnancy being the obvious proof of sexual intercourse,
abortions are very frequent for Rohingya couples married without authorization, and
for those validly married but with more than two children. In Burma, abortion is illegal
and punishable under Section 312 of the Penal Code64 by fines and up to seven years in
prison. As a result, the marriage restrictions often lead to women having repeated and
unsafe abortions.65 Women frequently self-induce miscarriages, or pay an “abortionist”
to perform abortions. Many techniques are used, for instance: home-made herbal
remedies, the stick technique (which involves the insertion of sticks of different sizes in
the vagina and uterus), massaging or pushing, pressing and hitting the stomach and
uterus.66 Unsafe abortions cause reproductive health- and general physical problems for
women. Abortions constitute one of the major causes of maternal deaths.67

Giving birth without a valid marriage certificate, in violation of the Local Order,
can lead to further problems for Rohingya parents and children. As explained by Chris
Lewa, to avoid punishment for having children in these circumstances and being
charged for marrying without permission, some couples ‘have registered a newborn
child with another legally married couple, sometimes their own parents. Some have
gone to deliver secretly in Bangladesh, abandoning their baby there.’68 Reports indicate
that to curtail this practice and ensure that parents do not register their children with
other families, NaSaKa has requested that Rohingya women go to their camps at various
stages of their pregnancy as well as with the baby after birth. Parents who do not have
official marriage permission who choose to keep their babies are unable to register
their children. There are reportedly thousands of Rohingya children in North Arakan
State who are not registered because of the marriage restrictions imposed on their
parents. The immediate consequence of this is that children will not be on any family
list, and will need to be hidden in the paddy fields or elsewhere when inspections take
place, to avoid punishment.69 These children are likely to be specifically targeted and
___________________________________________________________________________
63 NCGUB, supra note 52 at 810.
64 Penal Code, India Act XLV. 1860 (1 May 1861), available at http://www.blc-
burma.org/html/myanmar%20penal%20code/mpc.html.
65 Lewa, The Arakan Project, supra note 61 at 4; NCGUB, supra note 52 at 796.
66 See more generally on methods used to perform abortions in Burma C. Maung & S. Belton, Working our

Way Back Home: Fertility and Pregnancy Loss on the Thai-Burma Border (Mae Sot, Mae Tao Clinic, 2005),
available at http://www.burmalibrary.org/docs3/OurWay.pdf at 42-48.
67 Ibid., at 3; NCGUB, Burma Human Rights Yearbook 2008, supra note 12 at 796; ‘Report of the Committee

on the Elimination of Discrimination against Women’, Myanmar Initial Report, UN Doc. Supplement No.
38 (A/55/38) (2000) at para. 129.
68 Lewa, The Arakan Project, supra note 61 at 4.
69 NCGUB, supra note 12 at 698.

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end up as victims of abuses from the various Burmese authorities throughout their
lives. For Burmese authorities these individuals will be nonpersons, individuals with no
social or legal status. These children will grow up with the inability to claim any rights:
they will have constant problems accessing education or health care. Later in life, they
will have no possibility of getting travel permits or marriage permission. Generally, the
Rohingya children born outside of valid marriage according to the Local Order will be
even more vulnerable to violence and unable to seek redress.

The Local Order is a discriminatory policy and tool used by the different levels of
authority to extort money from the Rohingyas. The Local Order is implemented strictly
and also appears to be freely interpreted by NaSaKa. Rohingyas reported being coerced
or arrested for disregard of the Local Order on the basis that they had intimate or sexual
contact, or that they were simply visiting a house in which there was an unmarried
individual of the opposite sex.70 In September 2008, for instance, a Rohingya woman
was arrested by NaSaKa for ‘allegedly having a love-affair, without having permission to
do so from the authorities’.71 Young unmarried boys and girls who meet are always at
risk of being accused of violating the Order. NaSaKa rely on a group of informers who
report non-compliant behaviour. The VPDC Chairmen must also keep a list of couples
cohabiting without marriage authorization, and of couples with children beyond the
permitted number of two. Hence, Rohingyas will be punished after finding themselves
on these lists, following routine checks of the family lists, or sometimes after simply
being denounced by neighbours for miscellaneous reasons. It has been reported that at
other times special checks will be arranged, seemingly for profit, specifically targeting
unauthorized married couples. The Local Order compelling Rohingyas to obtain
permission before marrying does not provide any details regarding punishment or
penalties, and does not lay down the possible consequences for failing to obey the
directives. In practice, failure to comply leads to harsh punishment, including detention
and imprisonment.

Two provisions of the Penal Code72 are often used to prosecute Rohingyas for
non-compliance with the Local Order. Following Section 493 of the Penal Code,
Rohingya men are accused of living with women and making them falsely believe that
they are lawfully married. The provision reads:

Every man who by deceit causes any woman who is not lawfully married to him
to believe that she is lawfully married to him, and to cohabit or have sexual
inter-course with him in that belief, shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall also be
liable to fine.73

Rohingya men in North Arakan State are commonly prosecuted under this provision for
violating the Local Order and marrying under Islamic law without official authorization.
The prison sentence usually given for cohabitation with an “unauthorized wife” appears
to be on average four to five years, but many Rohingyas are given the maximum
sentence of ten years.74 Following the second provision Rohingyas are usually
___________________________________________________________________________
70 Ibid.; Bangladesh testimonies, supra note 22: M1-B-2.
71 NCGUB, supra note 12 at 810.
72 Penal Code, supra note 64.
73 Ibid., Chapter XX ‘Offences Relating to Marriage’, s. 493.
74 Lewa, The Arakan Project (Document MR-01), supra note 51; Document MR-02, supra note 51

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prosecuted and detained for the maximum time of six months, on the basis of
disobeying ‘an order promulgated by a public servant’.75 Reports indicate that there are
dozens of Rohingyas in each village in North Arakan State who are or have been
imprisoned for unauthorized marriages. In fact, it has been advanced that in one of the
prisons in North Arakan State, Rohingya convicts serving time for prosecutions relating
to the Local Order account for almost half of the inmates.76 Imprisonment can
sometimes be avoided in exchange for bribes. Many Rohingyas have in fact been
brought to prison on the basis of the Local Order and kept there, without being formally
charged, until they paid substantial bribes to be released.

In recent years, a small number of individuals sentenced to prison for behaviour


that was considered to be non-compliant with the Local Order have successfully
appealed their sentences. Cases of deceitful cohabitation were overturned on the basis
of criminal procedures77 and the initiation of criminal prosecutions without any
complaints from the supposedly aggrieved women (in this case Rohingya women
cohabiting with their husbands following marriages under Islamic law but without
official permission). 78 In practice, many Rohingyas cannot afford legal representation
and as a result have no choice but to serve their sentences. In other cases where appeals
have been lodged, Courts did not overturn the decisions related to the marriage
authorization Order, but merely reduced the sentences by half. While the decisions of
the Supreme Court are evidently an encouraging step towards correcting the violations
of the right to marry and found a family, in reality these decisions have not thus far had
a significant impact on the Rohingya community. In other words, although the Courts
have reduced and overturned some sentences, the predicaments created by the Local
Order have not been tackled, and the legality and underlying problems of this directive
remained unexamined.

As noted at the beginning of this section, the right to marry and found a family is
protected under international human rights law. In Burma, Buddhists and other ethnic
groups can marry following their own customs, religious or secular, as marriage is
considered a private affair, with no need for official endorsement. The situation is
completely different for the Rohingyas. The Local Order on marriage authorization
constitutes a discriminatory policy, and its implementation is an act of persecution
constituting intentional and severe deprivation of fundamental rights of Rohingyas. This
violation has been recognized as such by the international community, including United
Nations bodies which called on Burma ‘to lift the orders concerning marriage
authorization and restriction of pregnancy’.79 In North Arakan State the Burmese
authorities infringe upon the right to marry and intentionally deprive the Rohingyas of
this right in a discriminatory manner. As noted by Chris Lewa: ‘This discriminatory
order and its predatory application are deliberately imposed to control the birth rate

___________________________________________________________________________
75 Penal Code, supra note 64, Chapter X ‘Contempts of the Lawful Authority of Public Servants’, s. 188
76 Document MR-02, supra note 51.
77 Code of Criminal Procedure (1898), available at http://www.blc-

burma.org/html/Criminal%20Procedure%20Code/cpc_index.html, s. 198. ‘Situation of Human Rights in


Myanmar, Report of the Special Rapporteur on the Situation of Human Rights in Myanmar’, UN Doc.
A/64/318 (2009) at para. 75.
78 Ibid., para. 76.
79 ‘Concluding observations of the Committee on the Elimination of Discrimination against Women -

Myanmar’, UN Doc. CEDAW/C/MMR/CO/3 (2008) at para. 43.

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and to limit expansion of the Rohingya population.’80 With the Local Order being
exclusively applied in relation to the Rohingyas, it is clear that the limitations on the
right to marry and found a family are imposed on the basis of their race or religion. This
persecutory act does not only constitute an international crime, but, as revealed by the
fact-finding mission, also contributes to poverty, the decline of the Rohingya
community, and its exodus to Bangladesh. Rohingya society is very conservative and the
marriage restrictions imposed necessarily represent a grave problem for the group.
Interviews show that amongst all the violations committed against them, the marriage
restrictions are one of the main factors in the Rohingyas’ decision to flee their country.
Because of these restrictions, Rohingya boys and girls and their parents see no future
for the young people in North Arakan State. As a result, families now frequently choose
to send their sons and daughters to Bangladesh once these have reached the age of
puberty. That is, of course, if they do not decide to cross the border as entire family
units and face what is for many, an undoubtedly difficult future.

3.2 Denial of Freedom of Religion

A prominent manifestation of discrimination against the Rohingyas is the widespread


restrictions on their freedom of religion (an issue that is obviously closely linked to the
foregoing discussion on marriage restrictions). Such restrictions are a central pillar in
the SPDC’s decades-long drive to ethnically, culturally, and religiously homogenize the
minority regions of the Union, a policy otherwise known as Burmanization.81 While the
SPDC does not expressly prohibit the practice of Islam in North Arakan State,82 for many
years it has prohibited the construction and maintenance of mosques and in some
instances has forced communities to destroy them and build pagodas in their place.
Commenting on this issue, the FIDH recounted the testimony of one refugee who stated:

Numerous mosques and Koranic schools have been destroyed. Others are
simply closed off. It is strictly forbidden to build new ones – even renovating or
repairing a mosque is forbidden nowadays. The government also confiscated
mosques and madrasas to make administrative building of them [sic]. The
government is changing the topography of the North by building pagodas and
monasteries all over the hills. The land is ours, but now the visitor may think it
belongs to the Buddhists.83

This account finds support in the recent concerns of the Special Rapporteur on Freedom
of Religion or Belief, Asma Jahangir:

___________________________________________________________________________
80 Lewa, The Arakan Project, supra note 61 at 4.
81 See discussion in Chapter VI (Deportation or Forcible Transfer of Population).
82 Indeed, article 362 of the 2008 Constitution states that, ‘[t]he Union also recognizes Christianity, Islam,

Hinduism and Animism as the religions existing in the Union at the day of the coming into operation of
this Constitution’.
83 International Federation of Human Rights (FIDH), ‘Burma: Repression, Discrimination and Ethnic

Cleansing in Arakan’ (2000), available at http://www.fidh.org/IMG/pdf/arakbirm.pdf at 26. See also C.


Lewa, The Arakan Project, ‘Testimony to the United States Commission on International Religious
Freedom’ (2007), available at
http://www.uscirf.gov/index.php?option=com_content&task=view&id=2147; NCGUB, Burma: Human
Rights Yearbook 2006 (2007), available at
http://www.ncgub.net/NCGUB/BHRY/2006/pdf/yearbook2006.pdf at 534.

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Muslims claim that they are not allowed to build new mosques and to extend or
repair existing mosques and madrassas. As a result, many mosques are left in a
state of dilapidation. In certain places, the land of the mosque was confiscated by
the authorities such as in Sittwe [capital of Rakhine State] where a Buddha
museum was built on the land of the mosque. Furthermore, under the 1982
Citizenship Law, the Rohingyas were denied Myanmar citizenship, which has
curtailed the full exercise of their civil, political, economic, social and cultural
rights and led to various discriminatory practices… Rohingya couples need to
obtain a permission to marry and, if they get married only in a religious way,
which is not considered as an official marriage, they can be imprisoned. These
measures are only reportedly imposed [on] Rohingya Muslims and only in North
Arakan [Rakhine]. According to two new regulations from October 2005, Muslim
men, with the exception of religious leaders, must shave their beard to be
allowed to marry and couples need to sign a declaration they won’t have more
than two children.84

Aside from the obvious effects that the closure of mosques and madrasas has on the
ability of the community to worship, it has much broader societal repercussions,
particularly from the perspective of the right to marry and form a family. At a practical
level, this also impacts on access to primary education which, given the fact that many
Rohingyas are not permitted to attend VPDC schools, is frequently provided by local
religious leaders.

The active promotion of Theravada Buddhism is central to the SPDC’s strategy


for the suppression of ethnic insurgency. As documented in chapter VI on deportation
and forcible transfer, large portions of Rohingya-occupied land have been confiscated
for the construction of model villages, which not only involves the resettling of ethnic
Burman in the region, but also gives rise to the deliberate construction of Buddhist
pagodas. The intention behind this seems to be to lead to the dispersal and dilution of
Rohingya communities. Several Rohingya refugees and asylum seekers referred to the
widespread denial of their freedom of religion as the primary reason for their flight to
Bangladesh.85 As a conservative Muslim group, major aspects of Rohingya life – such as
birth, death, marriage and education – are dominated by religious orthodoxy.
Restrictions on freedom of religion therefore have an enormous impact on the life of the
Rohingyas. The restrictions are unjustified, discriminatory and are a constituent
element in the systematic persecution of the Rohingyas.

3.3 The Imposition of Arbitrary and Extortionate Taxation

Significant barriers obstruct regular domestic income-generation in North Arakan State.


Perhaps the most persistent and by all accounts damaging obstacle is the constant
imposition by local agents of the SPDC (predominantly the NaSaKa and the VPDC
leadership) of a regime of arbitrary taxation. However, while it is worth noting that such
regimes are a common feature throughout Burma (most especially in ethnic minority
regions), it is evident that in the context of North Arakan State, the imposition of
___________________________________________________________________________
84 Human Rights Council, ‘Report of the Special Rapporteur on Freedom of Religion or Belief, Asma
Jahangir – Addendum: Summary of Cases Transmitted to Governments and Replies Received’, UN Doc.
A/HRC/7/10/Add.1 (2008), at paras. 181-182. See also, Commission on Human Rights, ‘Report of the
Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir – Addendum: Summary of Cases
Transmitted to Governments and Replies Received’, UN Doc. E/CN.4/2005/61/Add.1 (2005), at para.
173.
85 Bangladesh testimonies, supra note 22: M26-C-1, M26-C-8, M27-C-1, M27-C-4.

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arbitrary and extortionate taxes has a disproportionately and systematically more


serious impact on Rohingya families.86 The imposition of this regime is inextricably
linked with the centralized funding structure – or more accurately the lack thereof – of
the army, NaSaKa and police. The majority of expenses accrued by them must be
covered by funds independently generated (i.e. independently of public funding) by the
regional command. As is so often the case in discussions on Burma, the rule of law plays
no role in terms of the means and methods adopted for the generation of local authority
funds. The industrial extraction of bribes in the context of situations of arbitrary
detention has been discussed above, and has been revealed as a source of considerable
income for the local agencies of the SPDC. However, the primary objective of this sub-
section is to focus on the more systematic extraction of arbitrary and crippling taxes
from each and every Rohingya family.

The most immediate impact of this taxation is on the productive- and income-
generating capacity of the entire community. In its 2000 report on Burma, the FIDH
stated:

In Northern Arakan [Rakhine], the economy has been appropriated by the


authorities, particularly by the military and the NaSaKa. It benefits a small,
privileged part of the population at the expense of a destitute population…Far
from benefiting from the slight shift to a market economy, the population…faces
an increasingly controlled and corrupt economic system which allows no
improvement in the general standard of living…[T]he Rohingyas as well as many
Arakanese are voluntarily maintained in chronic under-development as a means
of political domination…All sectors – from production to transport and sale – of
an economic system based on agriculture, and to a lesser degree on fishing, are
severely taxed. Formal taxes, to which numerous informal ones have been added
since 1992, are nothing less but a genuine racketeering of the population [sic]. 87

At a basic and rather simplistic level, the survival of a community is dependent on its
ability to feed itself. As noted previously, the majority of Rohingya households consist of
landless casual labourers, with only 30% of the population having access to agricultural
land of which the overwhelming majority is used as rice paddy.88 Securing sufficient
nutrition is therefore a year-round problem, especially during the rainy season (July-
October), when opportunities for regular employment are scarce. Food security is
dependent on four factors: access to agricultural land, the capacity of producers to be
able to provide enough food for the population, the stability of the market, and crucially,
the purchasing power of the individual. 89 It is clear that the SPDC has complete control
over each of these factors.

As noted in chapter VI on deportation and forcible transfer, the 1953 Land


Nationalization Act has been used as a tool to eradicate private ownership of land
across Burma; all land is effectively in the hands of the State.90 Thus, the 30% of the
___________________________________________________________________________
86 Document P-01 (on file with authors).
87 FIDH, supra note 83 at 32.
88 Document P-01 (on file with authors).
89 Ibid.
90 See also article 37(a) of the 2008, Constitution of the Union of Myanmar, available at

http://www.burmalibrary.org/show.php?cat=1140 : ‘The Union: (a) is the ultimate owner of all lands and
natural resources above and below the ground, above and beneath the water and in the atmosphere in
the Union’.

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population of North Arakan State with access to agricultural land do not have any title
rights as such and may, at any time, be forced from the land. Aside from the ever-
present prospect of land confiscation, Rohingya farmers can expect to be ordered to
hand over or sell a high percentage of their paddy yield to agents of the SPDC. When the
produce is purchased by SPDC’s agents, the price paid is only a fraction of the actual
market price and essentially amounts to a “rice tax”. This “tax” regime is not uniquely
imposed on the Rohingyas and is a common fact of life across Burma. However, in
Arakan State, rice tax is calculated as a percentage of the land acreage available as
opposed to the yield of the land.91 With respect to this calculation method, Human
Rights Watch commented that it has a particularly discriminatory impact on the
Rohingyas, ‘who for the most part have access to only the poorest quality land where
yields are much less than for [sic] good land’. 92 This system was formally implemented
by the SPDC as an official rice procurement policy. The abolishment of this system
(commonly known as the “rice tax”) took place in 2003 when the SPDC announced that
‘[s]tarting coming year the government will not buy paddy directly from farmers, and
adopt the new rice trading policy ensuring free trade of the crop…’93 In practice,
however, the army still take rice from the Rohingyas just as they did before. Refugees
and asylum seekers spoke of a situation in recent years, particularly 2008, where the
crop was ravaged by a cyclone in the region, and the total yield did not cover the
amount of rice requested. The situation required topping-up with rice purchased at
market. Needless to say, such a scenario has led to not only a significant increase in the
market price of rice (it has been estimated that the price of rice has risen 75% since
2007)94 resulting in the poorest and most vulnerable being unable to purchase their
staple foodstuff, but also to very serious shortages of supply leading to out-and-out
malnutrition. Large quantities of Arakan rice is being exported to Bangladesh by the
SPDC, despite the fact that almost 50% of the population have a deficient diet and a high
percentage of children are experiencing moderate to acute malnutrition.95 Ultimately,
the rice tax is either: (i) used to feed the various agencies of the SPDC (particularly the
army and NaSaKa), (ii) released on to the market at inflated prices, or (iii) processed for
export.

Rice is not the only product that is heavily and arbitrarily taxed. Virtually all
spheres of life are taxed. Other seasonal crops such as chilli peppers, onions and pulses
may be randomly taxed by local authorities. The Rohingyas can expect to be taxed for (i)
harvesting wood or bamboo, (ii) failing to correctly register livestock (birth, death, sale
or purchase must be reported), and (iii) fishing (the catch, nets and boats are all heavily
taxed). All of the above activities, from paddy farming to fishing, require the individual
to obtain a specific license for that purpose, a process which may itself require the
payment of hefty application fees and bribes. The extraction of these taxes is, again,
entirely arbitrary and varies from village tract to village tract, apparently on the whim
of local authority figures. Payment is non-negotiable and severe penalties follow any
___________________________________________________________________________
91 Human Rights Watch (HRW), ‘The Rohingya Muslims: Ending a Cycle of Exodus’, September 1996, Vol.8
No. 8(c) at 71.
92Ibid.
93 ‘State Ends Direct Purchase of Paddy, Adopts New Rice Trading Policy Ensuring Free Trade Starting

Coming Year’, The New Light of Myanmar (24 April 2003), available at
http://www.myanmar.gov.mm/NLM-2003/enlm/apr24_h2.html.
94 Document P-01, supra note 88.
95 Ibid.

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refusal or inability to pay. It is clear that the extraction of arbitrary taxes serves two
dual functions, namely: (i) to act as the bread basket for the NaSaKa and the army, and
(ii) to create and maintain intolerable living conditions for the local Rohingya
community. This tax regime, coupled with the extreme restrictions placed on freedom of
movement,96 ensures the continuous depreciation of day-to-day living standards for the
Rohingyas. The effect is impoverishment, starvation and frequently death. Given the
conditions on the ground, it is unsurprising that thousands of Rohingyas have been left
with no option but to flee. The imposition of taxes on almost all activities is arbitrary,
destructive, and most definitely, discriminatory. It leads to the denial of fundamental
rights and is thereby an instrument of persecution.

B. The Applicable Law with Respect to the Crime against Humanity of


Persecution: The Denial of Fundamental Rights on Inherently
Discriminatory Grounds

The objective of the foregoing section was not only to document prohibited acts
otherwise unaddressed in the Report, but to present them in way that clearly
establishes that they are being perpetrated on the basis of ethnic, racial and religious
discrimination and consequently fall within the perimeters of Article 7(1)(h) of the
Rome Statute which provides for:

Persecution against any identifiable group or collectivity on political, racial,


national, ethnic, cultural, religious, gender as defined in paragraph 3, or other
grounds that are universally recognized as impermissible under international
law, in connection with any act referred to in this paragraph or any crime within
the jurisdiction of the Court.97

As mentioned in the introduction to this chapter, Article 7(2)(g) clarifies this provision
further by stating that persecution ‘means the intentional and severe deprivation of
fundamental rights contrary to international law by reason of the identity of the group
or collectivity’.98 It is therefore a crime of specific intent, the only crime against
humanity with such a requirement.

It is worth noting at the outset that persecution, like murder, extermination,


enslavement, deportation, and other inhumane acts, was expressly provided for in the
Charters of the International Military Tribunal at Nuremberg (IMT) and the
International Military Tribunal for the Far East at Tokyo (IMTFE)99. Indeed, the
formulation of the offence in each of these instruments has been the subject of much
scholarly debate. The virtually identical wording of Article 6(c) of the IMT Charter and
Article 5(c) of the IMTFE Charter created two distinct categories of crimes against
humanity: those of the “murder type” such as murder, extermination, and deportation,
___________________________________________________________________________
96 See Chapter VI (Deportation or Forcible Transfer of Population).
97 Rome Statute, supra note 1 at art. 7(1)(h).
98 Ibid., at art. 7(2)(g).
99 ‘Charter of the International Military Tribunal (IMT),’ in Agreement for the Prosecution and

Punishment of the Major War Criminals of the European Axis (London Agreement), entered into force 8
August 1945, 82 UNTS 280 [Charter of the IMT] at art. 6(c); The Charter of the International Military
Tribunal for the Far East (26 April 1946), reprinted in N. Boister and R. Cryer (eds.) Documents on the
Tokyo International Military Tribunal: Charter, Indictment and Judgments (Oxford. Oxford University
Press, 2008) at 8, art. 5(c).

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and those of the “persecutory type” which were considered acts perpetrated on
specifically discriminatory grounds. The use of the disjunctive preposition “or” in the
provisions clearly established this typological distinction:

Crimes Against Humanity: namely, murder, extermination, enslavement,


deportation…or persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the jurisdiction of the
Tribunal, whether or not in violation of the domestic law of the country where
perpetrated.100

However, while the Nuremberg judgment entered convictions for this mode of conduct
it did not elaborate in any rigorous or substantive way on its specific elements as a
punishable offence. For example, the IMT judgment stated that ‘the persecution of the
Jews at the hands of the Nazi Government has been proved in the greatest detail before
the Tribunal’101, but as the Kupreškić trial judgment noted, ‘none of the courts
[operating in an immediate post-World War II context] endeavoured to define
persecution’.102 It was not until the trial judgment in the Tadić case at the Yugoslav
Tribunal that a workable definition was actually elaborated upon. The purpose of this
section is to provide some insight into the meaning and mechanics of the Article 7(1)(h)
of the Rome Statute with a view to solidifying the ultimate conclusion of this chapter
that the Rohingyas are the prima facie victims of the crime against humanity of
persecution. The following sub-sections will focus on what exactly constitutes a
persecutory act.

1. What Constitutes a Persecutory Act for the Purpose of Article 7(1)(h) of the
Rome Statute?

As is so often the case, it is simply impossible to fully appreciate the boundaries of an


offence under international criminal law without recourse to the jurisprudence of the
ad hoc international criminal tribunals for the former Yugoslavia and Rwanda. As noted
above, the crime against humanity of persecution may have a faultless pedigree but its
mechanics as an offence were largely a mystery until broached by a Trial Chamber of
the International Criminal Tribunal for the former Yugoslavia in the Tadić case. Drawing
on the work of M. Cherif Bassiouni and Antonio Cassese, the Trial Chamber concluded
that:

[I]t is evident that what is necessary is some form of discrimination that is


intended to be and results in an infringement of an individual’s fundamental
rights…this discrimination must be on specific grounds. Because the
“persecution type” is separate from the “murder type” of crimes against
humanity it is not necessary to have a separate act of an inhumane nature to
constitute persecution; the discrimination itself makes the act inhumane.103

The approach of the Trial Chamber to the question of what exactly constitutes a
persecutory act was merely to comment that such acts may ‘take numerous forms, so
long as the common element of discrimination in regard to the enjoyment of a basic or
___________________________________________________________________________
100 Charter of the IMT, ibid., at art. 6(c).
101 International Military Tribunal (Nuremberg), Judgment and Sentences, (1 October 1946) reprinted in
41 American Journal of International Law 172 at 247.
102 Kupreškić et al., Trial Judgment, supra note 2 at para. 598.
103 Prosecutor v. Tadić (Trial Judgment) IT-94-1-T (7 May 1997) at para. 697.

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fundamental right is present’.104 As a mode of prohibited conduct it ‘encompasses a


variety of acts, including, inter alia, those of a physical, economic or judicial nature, that
violate an individual’s right to the equal enjoyment of his basic rights’.105 In its judgment
three years later in the Kupreškić case the Trial Chamber stated further:

Persecution can also involve a variety of other discriminatory acts, involving


attacks on political, social, and economic rights…[and] is commonly used to
describe a series of acts rather than a single act. Acts of persecution will usually
form part of a policy or at least of a patterned practice…[D]iscriminatory acts
charged as persecution must not be considered in isolation…but examined in
their context and weighed for their cumulative effect. 106

The Chamber refused to identify which rights constitute fundamental rights for
the purposes of persecution saying that, ‘[t]he interests of justice would not be served
by so doing, as the explicit inclusion of particular fundamental rights could be
interpreted as the implicit exclusion of other rights’.107 However, it made clear that
alleged persecutory acts, if unenumerated, must reach the same level of gravity as the
other acts prohibited as crimes against humanity under the Statute.108 In this regard
William Schabas has commented that, ‘[p]ersecution is very similar to the cognate
concept of gross and systematic violations of human rights. It consists of the severe
deprivation of fundamental rights on discriminatory grounds’.109

For several years conflicting decisions emerged from the Yugoslav Tribunal as
the original Tadić formulation was subjected to close scrutiny. Of particular concern
was whether the physical element of the offence of persecution required that the
alleged conduct discriminate in fact, i.e., that the actual intent of the perpetrator to
discriminate must directly lead to a discriminatory result. The matter appears to have
been settled by the definition adopted by the Trial Chamber in the Krnojelac judgment
(subsequently endorsed by the Appeals Chamber) which provided that ‘The crime of
persecution consists of an act or omission which…discriminates in fact and which
denies or infringes upon a fundamental right laid down in international customary or
treaty law’.110 The Trial Chamber went on to reiterate that the requisite mens rea
standard required that the acts be ‘carried out deliberately with the intention to
discriminate on one of the listed grounds’.111

Despite the current state of the Yugoslav and Rwanda Tribunals’ jurisprudence,
the text of Article 7(1)(h) of the Rome Statute is distinguishable in a number of
important respects. First, the specified discriminatory grounds are significantly
expanded to include national, ethnic, gender or ‘other grounds that are universally
recognized as impermissible under international law’, in addition to the political, racial
and religious categories traditionally identified in the jurisprudence. This expansion is
___________________________________________________________________________
104 Ibid., para. 707.
105 Ibid., para. 710.
106 Kupreškić et al., Trial Judgment, supra note 2 at para. 615.
107 Ibid., at para. 623.
108 Ibid., at para. 621.
109 W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford. Oxford

University Press, 2010) at 175.


110 Prosecutor v. Krnojelac, (Trial Judgment) IT-97-25-T (15 March 2002) at para. 431; see also Prosecutor

v. Krnojelac, (Appeal Judgment) IT-97-25-A (17 September 2003) at para. 185.


111 Ibid., Krnojelac, Appeal Judgment, at para. 185.

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to be welcomed and indeed is more in keeping with the scope of the anti-discrimination
provisions of established international human rights instruments such as for example,
Article 2 of the Universal Declaration of Human Rights112, Article 2(1) of the
International Covenant on Civil and Political Rights113, Article 2(2) of the International
Covenant on Economic, Social and Cultural Rights114, and Article 1(1) of the
International Convention on the Elimination of All Forms of Racial Discrimination.115
However, this distinction is not particularly important where the Rohingyas are
concerned, because persecution is based upon the most traditional of grounds.

Second, Article 7(1)(h) requires that the alleged acts have a connection with ‘any
act referred to in Article 7, paragraph 1, of the Statute or any crime within the
jurisdiction of the Court’.116 This would appear, on the face of it, to place significant
constraints on the scope of the conduct that may fall within the ambit of persecutory
acts and is analogous with the Nuremberg standard necessitating that a crime against
humanity be committed ‘in connection with any crime within the jurisdiction of the
Tribunal, whether or not in violation of the domestic law of the country where
perpetrated’.117 The connection requirement, seems to reject the Yugoslav and Rwanda
tribunals’ desire to extend the scope of international criminal justice to acts not
necessarily enumerated in their constituent Statutes, but nonetheless of such gravity as
to warrant prosecution as persecutory acts. As Judge Pocar has commented, ‘[o]nce
again, policies of discrimination not specifically linked to war crimes, genocide, or other
crimes against humanity might go unpunished’.118 However, it is important to note that
the Trial Chamber in the Kupreškić case found that ‘although the Statute of the ICC may
be indicative of the opinio juris of many States, Article 7(1)(h) is not consonant with
customary international law’.119 This may be explained by the fact that Article 7(1)(h)
was drafted prior to the emergence of most of the ad hoc Tribunal case-law discussed
here. To date the International Criminal Court has not had an opportunity to consider
the matter and it is possible, if not probable, that the jurisprudence of the ad hoc
Tribunals will prove authoritative. Indeed, this chapter proceeds on the basis that
unenumerated conduct may be considered persecutory provided it is of comparable
gravity to other enumerated conduct under Article 7 and is committed with
discriminatory intent. Third, and finally, it is worth recalling that as per the general
requirements for crimes against humanity as outlined in chapter III, the alleged acts of
persecution must be committed pursuant to or in furtherance of a State or
organizational policy. These requirements are all very well, but they don’t necessarily

___________________________________________________________________________
112 UDHR, supra note 45 at art. 2 – ‘Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status…’.
113 International Covenant on Civil and Political Rights, (1966), entered into force 23 March 1976, 999

UNTS 171 [hereinafter ICCPR] at art. 2(1).


114 International Covenant on Economic, Social and Cultural Rights, (1966), entered into force 3 January

1976, 993 UNTS 3 [hereinafter ICESCR] at art. 2(2).


115 International Convention on the Elimination of All Forms of Racial Discrimination, (1966), entered into

force 4 January 1969, 660 UNTS 195 [hereinafter ICERD] at art. 1(1).
116 Elements of Crimes, Doc. ICC-ASP/1/3 at 11.
117 Charter of the IMT, supra note 99 at art. 6(c).
118 F. Pocar, ‘Persecution as a Crime Under International Criminal Law’, (2008) 2 Journal or National

Security Law & Policy 354 at 364.


119 Kupreškić et al., supra note 2 at para. 580.

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bring us any closer to an understanding of the phrase, ‘severe deprivation of


fundamental rights contrary to international law’.120

Returning to the case-law once again for guidance it is clear that the modes of
conduct recognized as potentially constituting persecution may be separated into three
categories:

(i) Discriminatory acts causing physical or mental harm such as murder,


extermination, starvation, enslavement, deportation, forcible transfer,
torture, rape, physical violence not constituting torture, cruel and
inhumane treatment or subjection to inhumane conditions, constant
humiliation and degradation.121

(ii) Discriminatory infringements on freedom such as unlawful arrest,


detention, imprisonment or confinement, restrictions on freedom of
movement, exclusion from certain professions, forced labour, restrictions
on family life, denial or arbitrary revocation of citizenship, registration of
members of a group etc.122

(iii) Offences against property for discriminatory purposes. Such acts may
include seizure of assets, confiscation or destruction of private dwellings,
businesses, religious buildings, cultural or symbolic buildings or means of
subsistence.123

There appears therefore to be a significant range of conduct that may fall within
the parameters of persecution provided the requisite and crucial intent to discriminate
is established. Indeed, the factual findings of this Report refer extensively to each of
these three categories of conduct. The following section will place the factual findings of
Section A within this legal framework in order to pronounce on the existence of a prima
facie case for the commission of the crime against humanity of persecution against the
Rohingyas of North Arakan State.

2. Applying the Facts to the Law: Does the Situation of the Rohingyas Constitute
Persecution?

From the outset, the factual findings of this chapter placed special attention on the
inherently discriminatory nature of the reported acts. The factual findings may be
subdivided into enumerated prohibited conduct and unenumerated conduct of such
gravity as to qualify as persecution. Section A placed the findings of previous chapters in
a persecutory context, i.e. established that the documented conduct, namely, forced
labour, rape and sexual violence, and forcible displacement was pursued with
discriminatory intent. Section A also looked at four categories of conduct thus far
undocumented: arbitrary detention, torture, murder and other acts constituting the

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120 Rome Statute, supra note 1 at art. 7(2)(g).
121 See C.K. Hall, ‘Article 7(1)(h) – Persecution’, in O. Triffterer (ed.), Commentary on the Rome Statute of
the International Criminal Court: Observers’ Notes, Article by Article, (München. C.H. Beck – Hart – Nomos,
2edn. 2008) at 258-260.
122 Ibid., at 260-261.
123 Ibid., at 261.

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denial of fundamental rights. The following briefly looks at the applicable law with
respect to these categories of conduct.

The first category of conduct examined was arbitrary detention, or to give it its
equivalent wording under Article 7(1)(e) of the Rome Statute: ‘Imprisonment or other
severe deprivation of physical liberty in violation of fundamental rules of international
law’.124 The Elements of Crimes offers some guidance as to the meaning of this provision
stating that the physical element of the offence requires that, ‘[t]he perpetrator
imprisoned one or more persons or otherwise severely deprived one or more persons
of physical liberty’.125 It continues that ‘[t]he gravity of the conduct’, must be such, ‘that
it was in violation of fundamental rules of international law’.126 Naturally such acts must
be shown to have been either widespread or systematic, and in order to be considered
under the rubric of persecution must have been committed on discriminatory grounds.
Freedom from arbitrary detention (meaning outside of due process of law according
with international standards) is a central tenet of international human rights law, and
finds its most comprehensive formulation in Article 9 of the ICCPR. Article 9(1) states:

Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with sure procedures as are
established by law.127

The factual findings point to an abundance of evidence illustrating the widespread and
systematic arbitrary detention of members of the Rohingya community throughout
North Arakan State. The continuous denial of citizenship to the Rohingyas on the basis
of ethnic discrimination exposes them to the worst excesses of the SPDC’s repressive
policies; systematic arbitrary detention is but one manifestation. The arbitrary
detention of the Rohingyas is so prevalent as to be considered to have reached
industrial levels, with arrest and detention being as much about extortion and the
erosion of economic sustainability as it is about infliction of violence and abuse. While
other ethnic minorities resident in North Arakan State are also victim of such treatment,
this Report concludes that the Rohingyas are disproportionately targeted for such
treatment on the basis of their ethnic, racial and religious make-up. The nature of the
discrimination is such that the SPDC’s continuous recourse to arbitrary detention must
be considered persecutory in fact.

The persecutory regime of arbitrary detention appears to act as a forum for the
perpetration of other prohibited acts such as torture and murder. Torture as a crime
against humanity is provided for in Article 7(1)(f) of the Rome Statute. Article 7(2)(e)
defines it as ‘the intentional infliction of severe pain or suffering, whether physical or
mental, upon a person in the custody or under the control of the accused’.128 It is worth
noting that in elaborating on the boundaries of the offence the Elements of Crimes
states that in referring to torture, ‘[i]t is understood that no specific purpose need be
proved’.129 Without delving into any of the controversies surrounding this definition it
___________________________________________________________________________
124 Rome Statute, supra note 1 at art. 7(1)(e).
125 Elements of Crimes, supra note 116 at 7.
126 Ibid.
127 ICCPR, supra note 113 at art. 9(1).
128 Rome Statute, supra note 1 at art. 7(2)(e).
129 Elements of Crimes, supra note 116 at 8, footnote 14.

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is sufficient to say that the express omission of a purpose requirement and the inclusion
of a control requirement set this definition aside from both the jurisprudence of the ad
hoc tribunals and from the Convention on Torture.130 Bearing in mind the findings of the
field investigation and the comments of successive Special Rapporteurs on Torture,
Extrajudicial, Summary or Arbitrary Executions and on the Human Rights Situation in
Myanmar that have been referred to, there appears to exist a strong prima facie case
that the Rohingyas are the targets for torture and other forms of inhuman or degrading
treatment or punishment (which fall under the category of other inhumane acts under
Article 7(1)(k)) on account of their ethnic, racial and religious status. Such practices are
widespread and systematic and constitute persecution. The same may be said of
instances of murder as documented in Section A above. The definition of murder under
Article 7(1)(a) is as per its common meaning in domestic criminal law with the addition
of the general requirements for crimes against humanity. Such acts rise to the level of
persecution on account of their discriminatory nature.

Turning to the unenumerated acts rising to the level of persecution as outlined in


Section A(3), it is clear that each category of conduct (marriage restrictions, denial or
freedom of religion and the imposition of arbitrary taxation) is firmly prohibited under
international law (including and/or international human rights and international
criminal law). Looking first at the regime of marriage restrictions, Article 17 of the
ICCPR provides that ‘[n]o one shall be subjected to arbitrary or unlawful interference
with his privacy, family, or correspondence, nor to unlawful attacks on his honour and
reputation’.131 Article 23(2) recognizes the ‘right of men and women of marriageable
age to marry and to found a family’.132 This provision builds on Article 16(1) of the
Universal Declaration of Human Rights which states that: ‘Men and women of full age,
without any limitation due to race, nationality or religion, have the right to marry and to
found a family.’133Aside from its prohibition under international human rights law there
is precedent for placing policies restricting marriage within an international criminal
framework. The judgment of the International Military Tribunal at Nuremberg in
discussing the persecution of the Jews refers to the series of discriminatory Nazi laws
which placed significant restrictions ‘on their family life and their rights of
citizenship’.134 A further example, is the RuSHA case – a post-World War II Control
Council No. 10 case before the United States Military Tribunal at Nuremberg – which
charged the accused with genocide [as it then was] as a crime against humanity
implemented, inter alia, by ‘[p]reventing marriages and hampering reproduction of
enemy nationals’.135 With the drafting of the Convention on the Prevention and
Punishment of the Crime of Genocide in 1948 the imposition of measures ‘intended to
prevent births within the group’, was included as a specific means of genocide under

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130 See for example, Prosecutor v. Furundžija, (Trial Judgment) IT-95-17/1-T (10 December 1998);
Prosecutor v. Kunarac et al., (Trial Judgment) IT-96-23-T & IT-96-23/1-T; Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, (1984), entered into force 26 June 1987,
1465 UNTS 112 at art. 1.
131 ICCPR, supra note 113 at art. 17.
132 Ibid., at art. 23(2).
133 UDHR, supra note 45 at art. 16 (1).
134 International Military Tribunal (Nuremberg), Judgment and Sentences, (1 October 1946) reprinted in

41 American Journal of International Law 172 at 244.


135 United States of America v. Greifelt et al., (Judgment) U.S. Military Tribunal, Nuremberg (10 October

1947) in 13 Law Reports of Trials of War Criminals1 at 3.

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Article 2(d).136 While not explicit, this provision could also be interpreted as including
restrictions on marriage. Given the link between the crime against humanity of
persecution and the crime of genocide, ‘in that acts that may begin as persecution of a
minority group may lead, in their most extreme manifestation, to a plan for the
intentional destruction of the group’,137 it seems possible to argue that the imposition of
significant and deliberately discriminatory restrictions on the marriage rights of
Rohingyas constitutes persecution under Article 7(1)(h) of the Rome Statute. The
inclusion of freedom to marry and form a family under the Universal Declaration and
the ICCPR confirms its status as a fundamental right. It is evident from the factual
findings above that restrictions placed on the exercise of this right are having a
profound impact on the stability of the Rohingya community. It is posited that the effect
and discriminatory nature of this conduct is of sufficient gravity to qualify as
persecution.

With respect to the other conduct considered, namely, denial of freedom of


religion and the imposition of extortionate taxation, there is a similarly sound basis in
international law. Article 18 of the ICCPR states that everyone shall have the right to
freedom of thought, conscience and religion.138 Article 6 of the International Covenant
on Economic, Cultural and Social Rights [ICESCR] acknowledges the right to work139,
while Article 7 recognizes the right of everyone to the enjoyment of just and favourable
conditions of work.140 Article 11 provides for the right of everyone to an adequate
standard of living for himself and his family.141 These provisions were essentially
inspired by the terms of the Universal Declaration of Human Rights and constitute
fundamental tenets of international human rights law. The subjection of the Rohingyas
to regimes/policies of arbitrary taxation and denial of freedom of religion on account of
their ethnic, racial and religious status constitutes clearly prohibited conduct. Their
effect is to contribute significantly to the erosion of day-to-day living conditions in
North Arakan State which ultimately leave large portions of the community with no
option but the flee the territory. The gravity threshold for persecution is therefore
satisfied.

C. Preliminary Conclusions

The primary objective of this chapter was to consider the findings of this Report within
a broader cumulative context, namely, under the banner of the crime against humanity
of persecution. As succinctly put by Article 7(2)(g) of the Rome Statute; ‘Persecution
means the intentional and severe deprivation of fundamental rights contrary to
international law by reason of the identity of the group or collectivity’. 142 This sentence,
more perhaps than any other, accurately sums up the situation of the Rohingyas of
North Arakan State. It is essential that we view the case for the commission of the crime
against humanity of persecution as an expression of the overall findings of this Report.
___________________________________________________________________________
136 Convention on the Prevention and Punishment of the Crime of Genocide, (1948), entered into force 12
January 1951, 78 UNTS 277 at article 2(d).
137 Schabas, supra note 109 at 175.
138 Ibid., at art. 18.
139 ICESCR, supra note 114 at art. 6.
140 Ibid., at art. 7.
141 Ibid., at art. 11.
142 Rome Statute, supra note 1 at art. 7(2)(g).

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Each chapter up to this point has examined the acts, or more appropriately, crimes,
committed against the Rohingyas in relative isolation. However, the common and by
now very obvious element linking each mode of conduct is the fact that their
commission is widespread and systematic and committed with discriminatory intent,
i.e., because of the ethnic, racial and religious make-up of the Rohingyas. Each category
of violation is linked to the discriminatory policies of the SPDC. From forced labour and
rape to forcible displacement and extortionate taxation the Rohingyas are targeted for
abuse on account of their minority status. The persecutory acts may be divided into
three categories: (i) Acts causing physical or mental harm; (ii) Acts or omissions
infringing individual and collective freedoms; and (iii) Acts or omissions leading to the
destruction or confiscation of property. The net result is the complete erosion of basic
norms of international human rights law and the removal of Rohingya dignity. In the
absence of the most basic freedoms, resulting in destitution and frequently death,
hundreds of thousands of Rohingyas have been left with no option but to flee their
homes for the relative safety of neighbouring states. There is no single critical issue
precipitating the ongoing exodus of Rohingyas from North Arakan State; the causes are
cumulative and on the basis of the findings of this chapter, ultimately persecutory.

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Chapter VIII:
Conclusions and
Recommendations

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CONCLUSIONS

For decades now, the Rohingya minority group has endured grave human rights
violations in North Arakan State. Hundreds of thousands have fled across the border to
Bangladesh towards harsh conditions of life, or left by boat to other destinations with
many losing their lives in the process. Every day, more Rohingya men, women and
children are leaving Burma, fleeing the human rights abuses in the hope of finding peace
and security elsewhere. This flight is often concealed; it is an on-going invisible exodus
taking place under the watch of NaSaKa, which constantly ensures that the Rohingya
community trickles away slowly across the border and not through another visible mass
exodus that would trigger the reaction of the international community. The situation of
the Rohingyas has been overlooked for years. Although accounts of the Rohingya “boat
people” pushed back at sea by the Thai authorities in 2009 attracted world-wide
attention, the Rohingyas’ plight and the root causes of their situation, however, still
remain under-examined. This Report has attempted to identify and discuss some of
these root causes.

The Report has examined the abuses and violations of human rights against the
Rohingyas through the framework of crimes against humanity, as defined in the Rome
Statute of the International Criminal Court. It has considered whether the violations
committed in North Arakan State can be labelled as crimes against humanity, a category
of crimes so grave that it prompts global concern, triggering obligations upon other
States as well as the responsibility of the international community. The Report has
analysed separately whether the apparent cases of enslavement, rape and sexual
violence, deportation or forcible transfer of population, and persecution may constitute
crimes against humanity. The Report establishes that all of these acts are occurring on a
scale that may indicate the commission of this type of crime. In practice, to firmly
establish that crimes against humanity are indeed committed against the Rohingyas in
North Arakan State, it is not necessary that each of these acts individually constitutes a
crime against humanity. Rather, the finding of crimes against humanity may be based
upon a collective assessment of the acts. On the basis of the research, confidential
meetings and interviews conducted with refugees and asylum seekers, it is submitted
that there exists substantial material to support the conclusion that crimes against
humanity are currently being committed against the Rohingya minority group in North
Arakan State.

According to the Rome Statute of the International Criminal Court, crimes against
humanity consist of specific punishable acts that are ‘committed as part of a widespread
or systematic attack directed against any civilian population, with knowledge of the
attack’. The factual findings and legal analysis provided in this Report indicate that
there is an attack against a civilian population in North Arakan State. The Rohingya
victims of enslavement, rape and other enumerated acts are clearly civilians. While the
SPDC has reiterated that there exists an insurgency and Islamic terrorism in North
Arakan State, research, confidential meetings and interviews conducted during the fact-
finding mission all lead to a rejection of the SPDC contention. They show that there has
been no significant active rebel group, insurgency or armed conflict in North Arakan
State for many years now. In the context of crimes against humanity an attack can be
simply defined as ‘a course of conduct involving the multiple commission of acts’
enumerated in the Rome Statute. This Report found that there undoubtedly exists such

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a course of conduct. These acts entail enslavement, rape and sexual violence,
deportation and forcible transfer of population and persecution (including the above-
mentioned acts as well as torture, murder, arbitrary detention, denial of freedom of
religion, the imposition of arbitrary taxation, extortion, and marriage restrictions).
These acts or crimes do not represent isolated incidents or acts perpetrated randomly
by one or a few deviant individuals. Instead, they are clearly linked to a broader context,
an attack or course of conduct against the Rohingya population.

To constitute crimes against humanity, an attack or course of conduct against the


Rohingya population in North Arakan State must be widespread or systematic. A
number of organisations, including United Nations bodies, have asserted that
widespread and systematic violations are indeed committed against Rohingyas in North
Arakan State. In the framework of crimes against humanity, ‘widespread’ generally
refers to the scale of the acts or number of victims,1 and the term ‘systematic’ to a
pattern or methodical plan, of violations that are organized in some ways and unlikely
to be occurring randomly.2 These disjunctive requirements are often examined together
and have tended to overlap in the international criminal jurisprudence. The
international criminal tribunals have identified a number of factors that may be taken
into consideration in assessing whether an attack is widespread or systematic, including
‘[t]he consequences of the attack upon the targeted population, the number of victims,
the nature of the acts, the possible participation of officials or authorities or any
identifiable patterns of crimes’.3

The participation of State agents in the multiple commission of enumerated acts,


and the facts that these crimes are often committed on the basis of direct or implicit
SPDC policies strongly suggests that the acts are widespread or systematic. The crimes
documented and discussed in this Report have been committed almost exclusively by
soldiers, NaSaKa and police officers. These acts appear to have been perpetrated most of
the time during duties, and regularly at State facilities. Documented rapes and sexual
assaults have for instance frequently occurred at military or NaSaKa bases and barracks,
during forced labour, during house searches and at checkpoints, as well as while women
were detained. Other acts were perpetrated as a result of the implementation of SPDC’s
policies. Deportation and forcible transfer of population have commonly occurred
following relocation orders. Infringement upon the right to marry by State agents is
based upon a Local Order imposing restrictions on Rohingya marriages in North Arakan
State. The self-reliance policy or policy of self-sufficiency implemented by the SPDC has
compelled or encouraged the exaction of forced labour by the military as a means of
providing sustenance to its members. The establishment of different national
development projects and the launching of various construction projects, without
adequate financial support from the SPDC budget, clearly produced forced labour in
North Arakan State. Above all, the exclusion of the Rohingyas from the official national
races in the 1982 Citizenship Law (which includes 135 ethnic groups), the denial of
citizenship and refusal to legalise their status is the catalyst for virtually all human
rights violations committed against the Rohingyas. This statelessness has allowed the

___________________________________________________________________________
1 Prosecutor v. Akayesu, (Trial Judgment) ICTR-96-4-T (2 September 1998) at para. 580.
2Prosecutor v. Tadić, (Trial Judgment) IT-94-1-T (7 May 1997) at para. 648; Prosecutor v. Kunarac et al.,
(Appeal Judgment) IT-96-23-T & IT-96-23/1-T (12 June 2002) at para.94.
3 Kunarac et al., ibid., at para. 95.

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SPDC and its agents to effectively deny or curtail the ability of the Rohingyas to exercise
their basic human rights. It is the basis for most of the acts examined in this Report and
a myriad of other human rights violations. Lacking legal status, Rohingyas are in effect
given two real choices: to leave or to endure persistent abuse.

The research and the fact-finding mission undertaken for this Report indicate
that the violations committed by different State actors against Rohingyas have
commonalities and some identifiable patterns. To start with, Rohingyas are for instance
recruited in the same manner to do forced labour, with each household forced to
“volunteer” a family member to work for the same number of days. Accounts of rape
and sexual assault by State actors also appear to have some similarities, for example
commonly taking place during house checks. Interviews and research suggest that some
human rights abuses can sometimes be avoided or alleviated, but only under a specific
condition or circumstance - the provision of bribes. The violence inflicted by State
actors in response to non-compliance of Rohingyas to requests, or non-submissiveness
to abuses, appears to be another common feature of the conduct of perpetrators. Failure
to provide the number of days of labour ordered for each household, resistance or
attempts at assisting someone who is raped or otherwise mistreated, defying forced
relocation or trying to seek redress for persecutory acts have all led to harassment,
threats, beatings, killings and other mistreatment such as the retributive abuse of family
members. There is a pattern of violence in the course of conduct, or attack, against
Rohingyas in North Arakan State and the impact on the physical and mental health of
the victims is disastrous. The means and methods used certainly suggest that State
actors, specifically army and NaSaKa members, appear to be committing acts in order to
assert control and show power over the Rohingya community. Whether it is a goal or
rather a result of their actions, the perpetration of abuses, means and methods used by
the military and NaSaKa in North Arakan State has caused, and continues to cause
humiliation intimidation, and persecution of the victims, their families and the entire
Rohingya community.

This Report found that the attack or course of conduct of State agents mentioned
continues to affect a large number of Rohingya victims in North Arakan State. The
Report found that the Rohingya minority group is specifically targeted, and that there
are within this group multiple victims of crimes enumerated in the Rome Statute. From
amongst the refugees and asylum seekers interviewed for this Report, at least half
provided evidence of enslavement. These accounts have shown that every family must
provide forced labour every week. While documenting cases of rape and sexual violence
is always challenging due to the trauma and stigma attached to these abuses,
approximately one in four of the individuals interviewed during the fact-finding mission
had been victims or direct witnesses of rape or attempted rape and sexual assault
against Rohingya women and girls in North Arakan State. Several interviews indicated
that certain women and girls had been raped multiple times. It is clearly apparent that
all women and Rohingya girls and women are at serious risk of becoming victims of
such crimes. Examination of the crime of deportation and forcible transfer of population
show that Rohingyas have been forcibly displaced on a massive scale at different times
over the last decades. At present there are 200,000 unregistered Rohingyas in
Bangladesh and numerous Rohingyas internally displaced in Burma. While it is
impossible to know if all these individuals were deported or forcibly displaced, it is
clear that a large number had to leave due to confiscation of land, forced eviction and

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relocations, or on the backdrop of the denial of citizenship and a myriad of associated


other human rights abuses. A significant number of Rohingyas continue to be victims of
persecutory acts in North Arakan State. Whether it is torture, murder, or infringement
of their freedom of religion, acts of persecution affect the whole population. In sum,
there exists a body of credible material sufficient to conclude that there are a large
number of acts enumerated in the Rome Statute committed against the Rohingyas; these
acts are most certainly not isolated but affect virtually every Rohingya household in
North Arakan State. Reports from non-governmental and international organisations
including United Nations bodies support the findings of the fact-finding mission.
Confidential meetings with individuals working with the Rohingyas have also confirmed
the factual findings. Indeed, some have provided the opinion that the situation of the
Rohingyas in North Arakan State is on a par with many of the worst human rights
abuses they have seen worldwide.

Since the 1990s non-governmental organisations, international institutions and


United Nations bodies have documented violations committed against the Rohingyas in
North Arakan State. The UN Special Rapporteur on the Situation of Human Rights in
Myanmar recently asserted:

[I]n the Northern Rakhine State (Arakan), the Sunni Muslim returnees are
subjected to political, economic, religious and social repression by the
authorities. The total number of Muslim residents/stateless (Rohingyas) is
estimated by non-governmental sources at 728,000. They have been denied
citizenship under the 1982 citizenship law, which renders them de facto
stateless. They are subject to systematic discrimination and abuse, which,
according to various sources, have worsened, especially with regard to the
restriction of movement, arbitrary taxation, forced labour, confiscation, forced
eviction and arbitrary arrest (including harassment and violence by police
forces, death in custody and sexual violence). In addition, people are often
harassed (house searches, confiscation of assets) or beaten by police forces,
mainly during controls or at checkpoints. Cases of rape of young women and
children, perpetrated by different police forces, have been reported.4

The wide range of documentation readily available on the issues, coupled with the
numerous Burmese official statements and responses, indicates that the SPDC has clear
knowledge of the allegations of multiple rapes and sexual violence, the frequent
exaction of forced labour, the deportation and forcible transfer of population, as well as
acts of persecution committed by its agents. Yet, the SPDC fosters impunity, undermines
the Rohingya victims and shields the perpetrators. As examined in the Report, the SPDC
has taken no genuine steps to adequately implement international recommendations
and concluding observations. The SPDC failed to establish mechanisms that would
provide redress and remedies to Rohingya victims. Failure of the authorities to
effectively investigate and prosecute crimes committed against Rohingyas is common.
In practice, victims who attempt to seek redress are oftentimes threatened or subjected
to retaliation. The failure of the Burmese leaders to respond to the commission of
crimes against Rohingyas cultivates the notion that this is acceptable, and that as far as
the treatment or mistreatment of Rohingyas is concerned, State actors have carte
blanche. The SPDC not only has knowledge of the multiple commissions of enumerated

___________________________________________________________________________
4UN Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in
Myanmar, Paulo Sérgio Pinheiro’, UN Doc. A/HRC/7/18 (2008), at para. 78.

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acts by State actors against Rohingyas but produces and fosters optimal conditions for
the perpetration of these crimes in North Arakan State. Impunity is contributing to the
plight of the Rohingyas and reveals that the SPDC actively promotes or encourages,
directly or implicitly, such a course of conduct or attack.

In conclusion, this Report finds that there is a reliable body of evidence of acts
constituting a widespread or systematic attack against the Rohingya civilian population
in North Arakan State. These appear to satisfy the requirements under international law
and confirm the perpetration of crimes against humanity. Immediate action must be
taken by the international community to respond to the situation. The remoteness of
and lack of access to North Arakan State, and the efforts of the SPDC to label the
Rohingyas as a group of economic migrants not belonging to Burma, should not shadow
the reality of the suffering of the Rohingyas. After being hounded for decades, it is time
that adequate attention is given to the plight of the Rohingyas. The attention of the
international community thus far appears to have been short-lived, often following
incidents such as the “boat people”. The root causes of the situation of the Rohingyas
must be further assessed, as failure to do so will undoubtedly lead to a bleak future for
this ethnic minority group. People committing, allowing, aiding and abetting these
crimes must be held accountable. The international community has a responsibility to
protect the Rohingyas, to respond to the allegations of crimes against humanity and
ensure that violations and impunity do not persist for another generation.

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RECOMMENDATIONS
The findings in this Report are based on a fact-finding mission and on extensive
research, supported by numerous reports of UN bodies and other organisations. These
findings raise serious concerns that crimes against humanity have been committed
against members of the Rohingya minority group in the North Arakan State of Burma.
For the suffering of the Rohingya community to be brought to an end, swift and effective
action is necessary. Accordingly, the following recommendations are called for:

To the State Peace and Development Council (SPDC)

 The SPDC must immediately end the persecution of the Rohingya minority and
the violation of their most basic human rights. All policies and practices
amounting to enslavement, restrictions on movement, forced labour,
deportation, forcible transfer of population, land confiscation, rape and sexual
violence, marriage restrictions, arbitrary detention, murder, torture and other
ill-treatment, discrimination, and other violations as outlined in this Report and
beyond, must be brought to an end without delay.

 The SPDC must ensure independent, impartial and effective investigations into
all cases of abuse, and hold those responsible accountable.

 The SPDC must repeal all laws identified as forming the basis of discriminatory
policies against the Rohingya minority. In particular, the SPDC must put an end
to the statelessness of the Rohingya minority, and ensure its ability to live free
and equal lives as full citizens of Burma.

 The SPDC must abide by its obligations under international human rights law,
international criminal law, and international labour law.

 The SPDC must ensure that all members of the Rohingya minority who have
suffered abuse and violation of their rights, including the large numbers who
have fled Burma, are given full and free access to effective mechanisms of justice
and redress.

 The SPDC must act in full cooperation and give unhindered access to all UN
bodies entrusted with promoting and protecting human rights, and to any future
Commissions of Inquiry or similar bodies mandated by the UN to investigate the
situation in North Arakan State and the rest of Burma.

 The SPDC must provide the victims of violations with reparation, in accordance
with the Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law (as adopted and proclaimed by
General Assembly resolution 60/147 of 16 December 2005). This includes

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Restitution, Compensation, Rehabilitation, Satisfaction, and Guarantees of non-


repetition.

To the UN Special Rapporteur on the Situation of Human Rights in Myanmar

 The Special Rapporteur should continue to advocate the establishment of a UN


Commission of Inquiry with a specific fact-finding mandate to address the
question of international crimes (UN Doc. A/HRC/13/48).

To the UN Security Council

 The Security Council should establish a Commission of Inquiry to investigate and


collect further evidence on the perpetration of crimes against humanity in North
Arakan State. Moreover, as raised throughout this Report, there is strong
foundation to believe that further crimes are being committed throughout other
areas of Burma, and the Commission of Inquiry must have a broad mandate to
investigate all allegations of international crimes committed in the country.

 Should the Commission of Inquiry confirm a prima facie case of crimes against
humanity, the Security Council should refer the case to the International Criminal
Court, pursuant to Article 13(b) of the Rome Statute.

 While an investigation and referral to the International Criminal Court can assist
in ending the violations and holding those responsible accountable, there will
remain a need to assist the members of the Rohingya minority who have fled or
were forced to leave Burma. An International Commission should be established
to oversee and ensure their safe return to Burma. Many of the Rohingyas have
lost their homes, and the Commission must ensure that the SPDC provides them
with homes and the possibility to live their lives free from fear of further
persecution. As part of this process, the Commission must ensure that legal
obstacles and harmful practices, such as those identified in this Report, are
ended. All this must take place within the framework and protections guaranteed
by international human rights law.

To the UN Human Rights Council

 The Special Procedures within the UN human rights system have already raised
serious concerns over the situation in Burma, including in North Arakan State.
This is true of the Special Rapporteur on the Situation of Human Rights in
Myanmar, and of Thematic Rapporteurs. The Human Rights Council must now,
on the basis of all the existing evidence and material, shift its efforts to urging the
Security Council to initiate a Commission of Inquiry.

 In the eventuality where the Security Council is unable to reach a decision on the
establishment of a Commission of Inquiry, the Human Rights Council should

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establish a UN Fact-Finding Mission with the mandate to investigate all


international law violations committed against the Rohingyas in North Arakan
State, as well as against other groups in the rest of Burma.

To the International Labour Organization (ILO)

 The ILO should continue its examination and scrutiny of all the labour-related
violations in Burma. This must include the apparent exaction of forced labour
from the Rohingya community in North Arakan State. In the absence of swift
satisfactory changes, the ILO should revive its previously discussed options of
recommending referral of the case to the International Criminal Court, and
requesting an Advisory Opinion from the International Court of Justice on the
issue of forced labour in Burma.

To the Association of Southeast Asian Nations (ASEAN)

 Member States of ASEAN must use their ties and influence within the ASEAN
framework to urge the SPDC to desist from the persecution of the Rohingya
minority, and fulfil its obligations as laid out in the above recommendations.

To all States

 States must use their positions within the UN system to support the
establishment of a Security Council mandated Commission of Inquiry or,
alternatively, to support a Fact-Finding Mission established by the Human Rights
Council.

 States with diplomatic and trade ties with Burma, must use their influence to
urge the SPDC to desist from the persecution of the Rohingya minority.

 States who recognise their competence to do so should exercise universal


jurisdiction to hold accountable those responsible for committing crimes against
humanity in North Arakan State and the rest of Burma.

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IRISH CENTRE FOR HUMAN RIGHTS
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Irish Centre for Human Rights


National University of Ireland, Galway
www.nuigalway.ie/human_rights
Email: humanrights@nuigalway.ie
Phone: + 353 (0)91 493609